Baroness Paisley of St George's

Eileen Emily Paisley, having been created Baroness Paisley of St George's, of St George's in the County of Antrim, for life—Was, in her robes, introduced between the Lord Molyneaux of Killead and the Baroness Boothroyd.

Lord Boyd of Duncansby

Colin David Boyd, QC, having been created Baron Boyd of Duncansby, of Duncansby in Caithness, for life—Was, in his robes, introduced between the Lord Irving of Lairg and the Lord Hardie.

Water Supply

Lord Janner of Braunstone: asked Her Majesty's Government:
	Whether they will put forward proposals to renationalise water companies in the United Kingdom.

Lord Rooker: My Lords, the Answer is no. Since the English and Welsh water and sewerage companies were privatised in 1989, they have become much more efficient and greatly improved our drinking water quality and the water environment.

Lord Janner of Braunstone: My Lords, I thank my noble friend for that Answer. However, does he realise what is happening to the water systems of this country at this moment, especially those that affect London? Does he know that, during a period of proclaimed danger of drought, Thames Water has announced an annual profit up by 23.2 per cent, to nearly £500 million, and yet it says that it does not have the funding to fix the water system and to mend the broken pipes? Does he know that in a recent poll a majority supported renationalisation of our water companies? In those circumstances, surely all water is a public resource and should be returned to the public ownership, in the public interest.

Lord Rooker: My Lords, I understand why my noble friend asks his supplementary, but there is no way under the present financial regime, or under the previous one, that there would have been £55 billion of investment in the less than 20 years since privatisation. I agree with what he says about Thames Water: it is the worst offender, losing through leakage something like 890 tonnes of water a day—I think that that should be million tonnes a day. It has a massively high leakage level. It has no excuse based on money, as its profits have been more than sufficient for it to carry out the infrastructure works; and, indeed, it is doing that throughout London. At the moment, parts of London are absolutely clogged and half the road has disappeared because Thames Water is replacing the Victorians' legacy, on which we have dined out for too long.

Lord Marsh: My Lords, does the Minister agree that the privatisation of British Rail is an awesome threat to us?

Lord Rooker: Yes, my Lords, but let us face it: the privatisation of British Rail was probably the worst-organised privatisation of the whole tranche. What is more, the Government who did it were warned about it before they did it.

Lord Forsyth of Drumlean: My Lords, I very much agree with the Minister in his opposition to the renationalisation of water. We know what it would be like from the experience in Scotland, where the Scots have enjoyed far lower investment in the water infrastructure and the taxpayer has had to pay considerably more. Will the Minister bear with me and say why the Government continue to refuse to require compulsory metering? It would save 10 per cent of water supplies, be good for the environment and create a market incentive for the privatised water companies to save the resources being squandered through leakages.

Lord Rooker: My Lords, before I answer the noble Lord, perhaps I may correct my earlier answer: Thames Water is losing 890,000 tonnes of water per day. Its leakage level is measured in weight.
	The noble Lord is right about water metering: it would save an estimated 10 per cent of water. As I said last week, the Government have no plans to require compulsory metering nationwide. Water meters are being installed over the next 10 years in 90 per cent of premises in areas of water stress—as Folkestone and Dover were announced to be early this year—on the same basis as elsewhere; that is, at no cost to the individual, though there is obviously a cost to the system. The issues can be looked at where water stress is an issue, but there are no plans to install water meters nationwide.

Lord Livsey of Talgarth: My Lords, although I have some sympathy with the questioner, does the Minister agree that a better solution would be to convert them into not-for-profit companies, as they were before nationalisation, and such as happened at Newcastle and Gateshead and at Welsh Water, where surpluses are invested in the infrastructure, leaks are repaired and consumers can get a discount on their bills?

Lord Rooker: My Lords, I do not know the details about Welsh Water, but some not-for-profit company models and some co-operatives can be just as efficient as private sector companies, and that includes getting investment. A different model was chosen in England, and I do not think we are in a position to turn back the clock. As I said, the Government have no plans to do so.

Lord Foulkes of Cumnock: My Lords, is my noble friend aware that the noble Lord, Lord Forsyth, has told him only half the story about Scotland, where water is still in public ownership but Scottish Water is unable to raise money on the private market? Therefore, the regulator has suggested that in Scotland we might consider that Scottish Water should become either a mutual or a co-operative and thereby get the best of both worlds—able to raise money on the private market but unable to be taken over by private companies whether they be French or from any other country.

Lord Rooker: My Lords, there is obviously a real issue in the Chamber about Scotland. As I said to the noble Lord, Lord Livsey, there are other models. The current model of what is considered old-fashioned public ownership clearly does not allow the money required for investment to be raised. Changes are therefore required.

Baroness Gardner of Parkes: My Lords, is the Minister aware that people living in blocks of flats are disadvantaged because Thames Water will not install meters unless each occupant or flat owner in the block of flats agrees to have them installed? Can he suggest anything to improve the situation?

Lord Rooker: My Lords, I cannot suggest anything off the top of my head, but I understand the situation. There is a real problem in the south-east. It is essentially a south-east issue—the leakage, the inadequacy and inefficiency of Thames Water and the rainfall. The south-east is a water stress area—there is no question about that—and something will have to happen. I cannot answer on blocks of flats but, like a lot of other joint services in blocks of flats, services have to be provided. People will generally save money by having meters fitted, and they can have them fitted for free. If they want to go back to the old system after the first year, under the current arrangements they can do so.

Lord Taylor of Blackburn: My Lords, would my noble friend kindly speak to his colleagues in other departments to prohibit development in the south-east? People can come to the north-west, where we have excellent water and ample opportunity for development.

Lord Rooker: My Lords, I absolutely agree with that. There is something immoral about the idea of moving water round the country. We could not do that anyway, given the scale and weight of the water that would need to be moved. Yet we have in the Midlands, the north-east and the north-west natural resources and land. Surely it is the people and the jobs that need to move. We need some symbolic moves because we know that the country is very unequally balanced with all this pressure in the south-east. The answer is to move the infrastructure to where the resources are.

The Earl of Onslow: My Lords, the noble Lord rather off-handedly brushed aside the possibility of moving water around the country. Studies have shown that a national water grid would be sensible, because it would produce competition among water providers in the same way that gas, electricity and energy now have a genuinely competitive market. At the moment, the water companies are localised monopolies, and a national grid system would solve that issue.

Lord Rooker: My Lords, it would be the other way round if people, jobs and infrastructure were moved. It is a seductive suggestion to move water from where there is plenty of water. An average family of five uses three-quarters of a tonne of water a day, on an average of 150 litres per person. There are 20 million people in the Home Counties. Just think about what we are asking the infrastructure to do. What a waste of expenditure on infrastructure, when we could do it the other way round, if we did more to save water and be more efficient and ensured that our infrastructure and growth were in areas where the natural resources are.

Energy Efficiency

Lord Ezra: asked Her Majesty's Government:
	Whether their targets for energy efficiency have so far been met.

Lord Rooker: My Lords, we are making good progress towards our household energy efficiency targets for 2010. This will accelerate as new policies take effect. The energy-intensive companies in the climate change agreement exceeded their interim targets in the first two milestones and are on course to achieve their 2010 targets. However, targets on reducing absolute carbon emissions and electricity use per unit of floor area of the central government estate are not currently being met.

Lord Ezra: My Lords, I note what the Minister says, but does he not agree that overall energy demand continues to rise at a time when we should expect it to decrease as a result of energy efficiency measures? Are not the Government's energy efficiency measures too fragmented to have a major impact, as the Science and Technology Committee contended in its report of last July? Will the Government therefore take advantage of the energy review to come forward with fresh thinking on energy saving, such as the offer of council tax rebates for improvements in home energy efficiency, bearing in mind that the domestic market is one of the most wasteful in energy terms and that a dramatic new initiative is required?

Lord Rooker: My Lords, the noble Lord has hit the nail on the head in many ways. As is implied in his question, no one key factor can deal with this issue. The energy review and the White Paper that flows from it will deal with both renewable energy and energy saving. That is for certain. I cannot pronounce on whether going down the council tax route is the way to do it, but we must certainly do more.
	The more equipment we put into our homes, the more energy we use. Consumption is going up even with the savings that have been made. A lot of policy initiatives have been put into train in the past few years, and they will come to fruition. At the same time, our consumption is going up because people leave their equipment, such as televisions and radios, on standby, which I understand consumes some three-quarters of the energy that is used to run that equipment in the first place. A big change in practice and culture is required. I am not sure whether a council tax rebate would be the answer, but we certainly need some big initiatives in this area.

Lord Paul: My Lords, what efforts are we making to educate children in schools about saving energy and about the colossal waste?

Lord Rooker: My Lords, I do not know about particular school programmes, although I know that a lot of work is being done in schools to explain what energy is, where it comes from, and the use of energy-saving equipment. There is nothing that we do not already know about this. Simple things such as modern light bulbs can save an enormous amount of energy, as can switching off lights when we do not need them. As some of the adverts say, "Don't boil more water than you need". All those simple little things can make an enormous difference. We are also changing building regulations, because in some ways that is the one way in which we can tackle the issue. On the Question asked by the noble Lord, Lord Ezra, from next summer, all homes in private occupation that are sold in this country will have to produce a home information pack that will include an energy rating. That will bring about change.

Lord Dixon-Smith: My Lords, the Minister is correct to draw the attention of the House to the fact that energy efficiency and energy economy are separate subjects. Of course, the economy has been becoming much more energy-efficient for a long time—long before we were concerned about global warming. However, a growing economy by and large continues to demand increasing amounts of energy so that energy consumption, as the Minister has pointed out, is still rising. Does he therefore accept that a solution for controlling emissions will be found by looking at the way in which we source our energy as opposed to looking at whether we use it efficiently?

Lord Rooker: My Lords, that is absolutely right. I have just come hotfoot from the Royal Show at Stoneleigh, where I saw examples of energy efficiency from the ground. You can get enough hot water from a few square metres of your garden a metre down to use for the house. You could do that everywhere, although obviously not for blocks of flats. There is a whole host of ways of using what is in fact solar energy; it does not have to come from solar panels. There are lots of examples of ways in which we can make better use of what the sun gives us that is now wasted, but we must tackle it from both ends by looking at emissions and new sources of renewable energy.

Lord Tanlaw: My Lords, when the Minister responded to the noble Lord, Lord Ezra, did he say that there has been a net increase or a net decrease in carbon emissions since new Labour took power? I understood him to say that there had been a net increase.

Lord Rooker: My Lords, I had to look at the issue last week when I repeated the Statement on Thursday morning. There are so many different figures and targets that it is incredibly complicated. That has probably been used as an excuse over the years for having done nothing about it, but I can say that the energy-intensive companies that signed up to the climate change agreements exceeded their targets in the first two milestones by saving 3.9 million tonnes of carbon. In the first three-year phase, we exceeded our targets under the energy efficiency commitment. We also delivered measures that saved 0.4 million tonnes of carbon per annum, which saved consumers £9 for each £1 spent. So there have been savings. There are other issues, but I will check the precise words that I used and will respond to the noble Lord in writing if I have to.

NATO: Membership

Lord Wallace of Saltaire: asked Her Majesty's Government:
	Whether, at the Riga summit in November, they will support extending the prospect of future membership of NATO beyond those states which have already been offered membership action plans.

Baroness Royall of Blaisdon: My Lords, the UK strongly supports NATO's open-door policy on enlargement. Enlargement is a catalyst for reform and stability and brings benefits to the alliance. It is NATO's intensified dialogue, not membership action plans, which first formally offers the prospect of NATO membership, but, of course, without prejudice to a final decision by allies on membership. Currently, only Ukraine has intensified dialogue. It is unclear whether any Partnership for Peace countries might be given intensified dialogue at Riga.

Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. Does NATO now have a clear strategy towards Russia? After all, it is fairly clear policy in Washington that Ukraine should be offered membership at the Riga summit. A substantial lobby in Washington suggests that Georgia should be put on a membership action plan, which to the Russians looks like the beginning of encirclement. Azerbaijan is mentioned by many, and even Israel is mentioned by a few in Washington as a package that would be part of any move towards a two-state solution. Are we in active dialogue with our American allies on the overall logic of NATO enlargement and how that interacts with our policy towards Russia and other neighbouring countries?

Baroness Royall of Blaisdon: My Lords, we are in interactive dialogue all the time with our partners in the alliance. With respect to Russia, there have been comments and speculation about the pace of enlargement, but NATO decides by consensus, so decisions are taken after much consultation and discussion. Those discussions and that consultation are taking place on Georgia and Ukraine. As far as I am aware, there are absolutely no discussions on Israel joining NATO. The NATO Secretary-General visited Israel last February when Israel put forward a tangible proposal for enhancing its co-operation with NATO. We welcome that co-operation, but that is as far as it goes.

Lord Garden: My Lords, the NATO parliamentary assembly at its meeting in Paris at the end of May urged member Governments to start the intensified dialogue with Georgia as soon as possible, preferably before this summer. It also urged member Governments to provide technical assistance to Georgia to speed up integration into Euro-Atlantic institutions. Do the British Government support that recommendation of the NATO parliamentary assembly? If so, what have they done?

Baroness Royall of Blaisdon: My Lords, we certainly welcome Georgia's NATO aspirations, and we stand ready to assist its reform programme wherever possible. We very much hope that Georgia will be given its intensified dialogue later this year, but, in the mean time, progress must continue in Georgia. Once it has achieved its intensified dialogue, progress towards membership will depend on its achieving NATO standards.

Lord Hamilton of Epsom: My Lords, does the noble Baroness accept that one of the great achievements of NATO is to stop member countries going to war with each other—one thinks particularly of Greece and Turkey? Therefore, enlargement has a great role to play in producing stability over large areas of Europe.

Baroness Royall of Blaisdon: Yes, my Lords, I fully concur with that position.

Lord Elton: My Lords, is it not the case that the larger and more numerous the membership of NATO becomes, the more urgent it is to find some good working machinery to achieve standard rules of engagement for all NATO members, so that forces in out-of-area operations in places such as Afghanistan can operate at maximum efficiency?

Baroness Royall of Blaisdon: My Lords, common rules of engagement are extremely important in NATO. However, we also need to construct better partnerships with countries with which we work on the ground—for example, Australia and Japan—but which are clearly outside NATO.

Lord Howell of Guildford: My Lords, we will of course discuss Afghanistan later in a Statement, but the position of NATO there is extremely worrying and there is enormous concern about how the organisation can strengthen itself. On the more immediate question of expansion, is it not the position that the Baltic three—Lithuania, Latvia and Estonia—are being invited to join and that Russia is very concerned about that? Are we in a good dialogue with Russia, whose support we certainly need in dealing with other issues, such as Iran? Could that be improved if we spoke to the Russians, rather than leaving it to people such as Vice-President Cheney who seem determined to offend them?

Baroness Royall of Blaisdon: My Lords, of course there is great concern about the situation in Afghanistan and, as the noble Lord said, there is to be a Statement later today. In respect of Latvia, Lithuania and Estonia, I presume that he means that they are being invited to join in in Iraq—

Noble Lords: In NATO.

Baroness Royall of Blaisdon: I am sorry, my Lords, in NATO. They are full members of NATO already. We welcome that, and I understand that they play a constructive role in NATO—in fact, much more so than people had presumed they would when they first joined.

Lord Stoddart of Swindon: My Lords, we are talking about the North Atlantic Treaty Organisation. It seems to me that we are going rather wide of that purpose by talking, first, about eastern Europe and, in Azerbaijan, about Asia. In talking about Israel, we are referring to the Middle East. Is it not the case that NATO is proceeding rather wider than was intended in the first place and, far from helping to promote peace, may be helping future wars?

Baroness Royall of Blaisdon: My Lords, I should make it absolutely clear that, when NATO talks about the prospect of enlargement, it discusses that with prospective member states within Europe. It does not look to enlarge beyond the Euro-Atlantic area. The central and eastern European countries are within Europe; Azerbaijan is within Europe. As I mentioned to the noble Lord earlier, there are no plans for Israel to join NATO.

Criminal Justice

Lord Goodhart: asked Her Majesty's Government:
	Whether they will transfer responsibility for criminal justice from the Home Office to the Department for Constitutional Affairs, so as to create a department for justice.

Baroness Scotland of Asthal: My Lords, no.

Lord Goodhart: My Lords, over recent weeks the Home Office has shown that it is totally incapable of handling the multifarious responsibilities that it now has, and it is plain that those responsibilities should be reduced. In particular, would it not be both logical and sensible to transfer responsibilities for the criminal justice system to the Department for Constitutional Affairs, leaving the Home Office with the police, the prisons and immigration? As criminal and civil justice overlap in many respects and are administered in the same courts by the same judges, should they not be under one department, a department for justice?

Baroness Scotland of Asthal: My Lords, I can reassure the noble Lord that the Home Office is capable of managing its current portfolio, and noble Lords know that we are undertaking a review. However, let me remind the House that at the moment the criminal justice system is managed on a tripartite basis between the Lord Chancellor in the Department for Constitutional Affairs, the Home Secretary at the Home Office and, indeed, my noble and learned friend the Attorney-General. Together we are making significant improvements to the criminal justice system which many outside the House have had the courage to applaud.

Lord Tebbit: My Lords, can the noble Baroness tell us when the Government first became aware that the Home Office was not fit for purpose?

Baroness Scotland of Asthal: My Lords, the noble Lord will know that that is not what my right honourable friend the Home Secretary said about the Home Office. He said that one part—the processes related to the IND—was not fit for purpose, but it does not apply to the Home Office as a whole. I am sure that the noble Lord knows that perfectly well.

Lord Lester of Herne Hill: My Lords, two and a half years spent in the Home Office 30 years ago convinced me that it was wholly irrational, if not worse, to split responsibility for criminal law from responsibility for civil law between different government departments. Can the Minister tell the House which other country in Europe or the Commonwealth has adopted that solution? What is the principal justification for splitting responsibility between not two but three departments instead of having a department for justice, as is the case in almost the whole of the rest of the civilised world?

Baroness Scotland of Asthal: My Lords, I should perhaps remind the noble Lord that no other democracy has a House of Lords, yet we still manage perfectly well. It is not irrational. The noble Lord will be very familiar with the report by Lord Justice Auld, who advocated bringing together the three parts of the criminal justice system. That is what we have done with the National Criminal Justice Board, where the component parts work very well in unison. The board has a meeting every month, and all parties are able to come to consensual agreement on how best to manage criminal justice—and that has inured to the advantage of our country.

Lord Woolf: My Lords—

Lord Hodgson of Astley Abbotts: My Lords, could the noble Baroness confirm to the House—

Lord Woolf: My Lords, I am grateful to the noble Lord. Does the Minister feel that it would be an improvement to have the department that is primarily responsible for the independence of the judiciary—namely, that which continues to be led by the Lord Chancellor—also responsible for prosecutions?

Baroness Scotland of Asthal: My Lords, we certainly do not feel that that is necessary. The noble and learned Lord will know that the prosecution department is currently brilliantly headed by my noble and learned friend the Attorney-General. It is a situation with which we are absolutely content. Working in unison, however, has been greatly beneficial, and we intend to continue along that line.

Lord Hodgson of Astley Abbotts: My Lords, can the Minister confirm that her department has produced more than 40 pieces of law and order legislation since 1997? That is one for every 80 days since taking office. When will the department start to get right what it is supposed to be doing?

Baroness Scotland of Asthal: My Lords, I hope that the noble Lord will agree that each of those pieces of legislation was necessary. The measures in the anti-social behaviour legislation and the work that we have done with the Criminal Justice Act have all proven necessary. I do not know whether noble Lords opposite think that perhaps we should rescind those measures.

Lord Foulkes of Cumnock: My Lords, if a Conservative Government legislated to effect what is proposed in the Question and they had their way on the constitutional issue in relation to Scottish MPs, Scottish MPs could not vote on the changes proposed. Perhaps my noble friend can help me: could I, as a Scottish Peer, vote?

Baroness Scotland of Asthal: My Lords, that is a matter for Members opposite. I notice that a number of them are shaking their head, so I can only take it that they would deny my noble friend that opportunity.

Lord Phillips of Sudbury: My Lords, further to the Minister's answer to the noble Lord, Lord Hodgson, does she agree that it would be wise for the Home Office, if it is to retain these responsibilities, to make much more effort to implement the laws that exist? At the same time, would she not concede that the record of this Government in creating new criminal offences since they came to power has been unique and, in many ways, counterproductive?

Baroness Scotland of Asthal: My Lords, I regret to tell the noble Lord that I cannot agree with him: it has been neither unique nor counterproductive. I assure him that every effort will be made to ensure that the implementation of legislation is rigorously pursued.

The Countess of Mar: My Lords, is it not the case that the noble Lord, Lord Foulkes, was introduced into this House as a Peer of the United Kingdom? He might be a Scot, but he is a Peer of the United Kingdom.

Baroness Scotland of Asthal: My Lords, I absolutely agree, but I think that the import of my noble friend's question was that noble Lords opposite, as a result of their new policy—I appreciate that these policies come thick and fast—would deny my noble friend.

Lord Armstrong of Ilminster: My Lords, is the Minister aware that, following the example of the noble Lord, Lord Lester of Herne Hill, four years as an official in the Home Office—two of them as Permanent Secretary—lead me to admire the content of her first Answer as much as I admire the brevity of it?

Baroness Scotland of Asthal: My Lords, I am grateful.

Business

Lord Grocott: My Lords, with permission, a Statement will be repeated this afternoon. The subject is the position of British Forces in Afghanistan. It will be repeated by my noble friend Lord Drayson, and we shall take it at a convenient time after 6.45 pm.

Information Committee

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Lord Kalms be appointed a member of the Select Committee in the place of the Lord Chadlington.—(The Chairman of Committees.)

On Question, Motion agreed to.

Wireless Telegraphy Bill [HL]

Read a third time, and passed, and sent to the Commons.

Legislative and Regulatory Reform Bill

Lord Bassam of Brighton: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
	Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)

Lord Jenkin of Roding: My Lords, I do not think we should agree to this Motion without further discussion. Given the history of the Bill, which was massively amended in another place, and the raft of amendments which the Government have tabled to the Bill as introduced into this House, I do not think we should accept this Motion without once again asking whether we really need this Bill.
	The question was asked several times at Second Reading on 13 June, but—and I say this in all kindness—in his winding-up speech the Minister failed to convince many of your Lordships of the case he was seeking to make. For instance, the noble Lord, Lord Garden, asked,
	"why can current legislation not be used"—[Official Report, 13/6/06; col. 187.]
	When the Minister came to answer that question, the first thing he stressed—and I think it is important to notice what he gave the most importance to—was that it would help,
	"to create a regulatory environment—the culture to which the noble Lord, Lord Kingsland, referred".—[Official Report, 13/6/06; col. 188.]
	My noble friend, of course, was referring to the culture in Whitehall departments, which the Minister acknowledged seemed to be reluctant to engage in deregulation. But if departments are unwilling to deregulate—if the culture does indeed need to be changed—surely to goodness it is the job of the Ministers who head the departments to make sure that change is achieved.
	What is there in this Bill that is supposed, miraculously, to convert officials to embrace the spirit of deregulation? Yes, it provides some new definitions, for example, of the burdens that can be removed or reduced by order. So one goes on to ask, as several noble Lords did on Second Reading, including the noble Lord, Lord Goodhart, why cannot the 2001 Act be amended,
	"to make it a little less complex and technical?"—[Official Report, 13/6/06; col. 189.]
	The noble Lord got no answer either, except that the Minister riposted by inviting him to use the Committee stage to "have a go", as he put it, at drafting amendments that simplified things. It may be that the noble Lord's amendments, of which there are many, would do that.
	We now have this raft of new amendments, tabled by the Government in this House. For instance, Clause 3 contains the power to implement Law Commission reports by order, to which the noble Lord, Lord Bassam of Brighton, said at col. 186 he remained "wedded". He remained wedded in the letter he wrote to us, which I shall refer to in a moment. But we now see, looking at the Marshalled List, that Clause 3 is to be removed.
	The criteria written into the Bill to govern the use of the veto by committees of either House are to be removed. These are changes which I am sure the House will welcome, but why were those criteria in the Bill in the first place? Is this not evidence, if evidence were needed, that the Government are simply making up this Bill as they go along?
	When this Bill started its life in another place, it contained powers to legislate by order that were so sweeping and all-embracing that it attracted the sobriquet the "Abolition of Parliament" Bill. Mercifully, most of those powers were withdrawn in that House, so it was a radically different and far more modest measure that came to this House. But here we go again: the Marshalled List contains upward of 30 government amendments and proposals for the removal of two entire clauses. The noble Lord, Lord Bassam, was kind enough to send a number of us a letter which covered the points that had been raised at Second Reading. It is no fewer than nine foolscap pages long, plus an annexe—let me say at once that I make no criticism of that: anything the Government can do to explain what they are trying to achieve must be an advantage. However, in the letter, the Minister once again tried to spell out why we needed the Bill rather than a much shorter measure amending the 2001 Act. He argued that the differences between the order-making powers in the Bill and in the 2001 Act,
	"are sufficiently significant to merit more than mere amendment of the 2001 Act".
	But I am driven to ask, if the Government had not originally attempted to introduce their far more drastic order-making power and to legislate by what was called the "Abolition of Parliament Act", whether they would not then have preferred to make the amendments in the form of a much shorter, simpler Bill, amending the 2001 Act. Would that not, even now, be a better course?
	Here we are, into July, with a very heavy legislative programme before us. Would it really not be wiser to recognise that this Bill, which in its present form still needs further to be amended, as witness the number of amendments on the Marshalled List, should be withdrawn before we waste any more time on it? Ministers could then really work out what they want to achieve and come back to the House in October with a simple amending Bill. I would hazard a guess that this might gain parliamentary approval quite quickly. Most of us are agreed on what needs to be done to speed up the process of deregulation. That would be a very much better way of doing it than starting to wade through this Committee now.

The Earl of Onslow: My Lords, I strongly support my noble friend Lord Jenkin, because I have an extraordinarily strong feeling, which I expressed at Second Reading but which needs to be expressed again, that giving any power to Ministers ever to amend primary legislation must be a bad thing, even if it is for anodyne and sensible purposes such as making regulation better. It is incredibly dangerous to give any Ministers that power. Let us reasonably assume that, on this issue, this Government are completely and utterly virgin pure, that they are a Government who, we know, are driven solely by the best of motives, that they are a Government who never put a foot wrong and never would dream of amending a Bill badly if they had the power. Let us for the sake of argument make that assumption. I do not trust any other Government, ever, to have that power, be they led by the right honourable Member for Witney, be they led by some as yet unborn child. I do not trust any Government, except possibly this one, to behave like that. So we have to be extremely careful about ever giving Ministers this power.
	Is it not obvious beyond peradventure that over-regulation arises from regulation, and regulation arises from the powers given to Ministers in primary legislation, so that over-regulation can and should be cured by re-regulation? In other words, let us say that fishing for snails in the River Wey is regulated, deriving the ministerial power of regulation from some agricultural Act. Going back to the agricultural Act containing the power for the Minister to make an order, the Minister sees that the order is wrong and changes the regulation. Surely, this matter is being looked at in an intellectually sloppy way. We say "over-regulation" and immediately we rush to the statute book. Over-regulation can and should be cured by proper attention to detail and making sure that regulations which have arisen out of primary legislation are properly drafted and enforced. So do we actually need the Bill? That is the point that I hope my noble friend Lord Jenkin is making.

Lord Desai: My Lords, I am not sure under what rubric we are having a Second Reading debate all over again. The noble Lord, Lord Jenkin, who introduced this device, said that we had far too much work to do and that if only we did not have this Bill we could get on with it. If he had not raised his objection, we could have got on with it faster. The Government have listened to what was said in the House of Commons and the House of Lords and followed that by introducing amendments. This is not the first Bill for which amendments have been introduced in the House by the Government. Surely the noble Lord, with his long experience, knows that. Why has this particular Bill been blown up into an "Abolition of Parliament" Act when it is only very modest legislation about regulatory reform, which was slowed immensely by the previous legislation? I said at Second Reading that we really needed something better; this Bill provides something better—and the sooner we get on with the Bill, the better off we will all be.

Lord Goodhart: My Lords, I agreed with much that the noble Lord, Lord Jenkin, said, particularly on why the Government have not simply amended the Regulatory Reform Act 2001. It is to deal with that issue that I gave notice of my intention of objecting to Clause 1 stand part, so that we can get a proper explanation from the Government of why that was not done. However, this House did not oppose this Bill at Second Reading or vote on any amendment that it should be delayed for six months. In the circumstances, it seems wholly illogical to object to this Bill going into Committee.

Lord Peyton of Yeovil: My Lords, I do not see that anybody has really answered my question; I hope that the noble Lord, Lord Bassam, will answer it. What on earth is the point of us expending further time on a Bill that has no obvious purpose? My noble friend Lord Jenkin put his points marvellously well and very clearly, as he always does. Of course, my noble friend Lord Onslow then hammered the nail home with his characteristic force.
	I do not want to spend time on this, but I want to make one point. I regard this Bill with some welcome because it is a classic example of, and illustrates with unusual clarity, what is meant by the phrase, "Satan rebuking sin". In the spectacle of Satan rebuking sin there is an element of hypocrisy. I wonder whether there is not an element of hypocrisy in the Government going ahead with this Bill. What puzzles me is that it may give this licence—these new powers—to Secretaries of State, but I wonder what form of conversion Secretaries of State, who all their lives have been soaked in the tradition of regulation, will need to undergo to be suddenly minded to withdraw them, repeal them, change them, weaken them and amend them.
	I do not want to say any more, but I hope that the noble Lord, Lord Bassam, will bear in mind that today he represents Satan. I am sure that he will do so with some skill.

Lord Richard: My Lords, I have listened to what has been said so far with bewilderment. As I understood it, this Bill has had a Second Reading in this House. If it has, it should now proceed through its stages. If Members of the Committee do not like what is in the Bill, they can table amendments. The only real issue upon which a Motion of this sort should be considered seriously by the House is surely one where the Bill has been changed so much between Second Reading and today that it is a different Bill. However, I do not think that is the position at all. The noble Lord, Lord Jenkin, the noble Earl, Lord Onslow, and my friend, the noble Lord, Lord Peyton, may well feel that it would have been better if the Bill had not been introduced, but that is not the point. It has been introduced, it is part of the Government's programme, it has had a Second Reading in this House and we really ought to get on with Committee.

Lord Kingsland: My Lords, with his characteristic perspicacity the noble Lord, Lord Richard, has put his finger on the point. But the answer to his point is not the one that he gave to his own question. When this Bill started its life in another place, it had two features which distinguished it from the 2001 Bill. The first was that it sought to remove the distinction between primary and secondary legislation. It was described by the fourth estate as the Bill to abolish Parliament. Fortunately, pressure from the fourth estate and a leaked letter from the government Chief Whip, which we all read with great interest, in combination forced the Government to think again in another place.
	But since Second Reading a second big change has been made to the Bill: the Government have decided to remove Clause 3. If Clause 3 had remained in the Bill, it would, indeed, have been an important distinction between this legislation and the 2001 Bill because Clause 3 sought to establish a completely separate system for driving Law Commission proposals through Parliament. The Government have now decided—in my submission, wisely—to withdraw Clause 3. So the question that my noble friend Lord Jenkin of Roding is posing to the Government today is: given that we have removed all the features of the Bill which might otherwise have rendered it an "Abolition of Parliament" Bill, and given that we have now removed the Law Commission features, what is left in this legislation which distinguishes it from the 2001 Bill? That is the difference between Second Reading and today.
	It is a well merited question. The Delegated Powers and Regulatory Reform Committee report, as we all know, stated that the main inhibition from making a deregulatory order is not the definition of "burden" in the 2001 Bill—a definition largely repeated in this Bill—or, more widely, parliamentary processes themselves, but the failure of government Ministers to put deregulation high enough on their agenda to make it work. That is said in terms in the report. So, with great respect to the noble Lord, Lord Richard, the intervention of my noble friend Lord Jenkin of Roding was exactly to the point. We need an answer from the Government.

Lord Tebbit: My Lords, perhaps I may briefly intervene. I do not know whether what I am going to say will help the case put by my noble friend Lord Jenkin or the case that, I suspect, will be made by the noble Lord, Lord Bassam, but there is already power under the 1972 Act to amend primary legislation by use of orders or regulations. I recollect very well that some years ago, before this Government came into office, the previous Government brought forward under the 1972 Act an order that amended the Sex Discrimination Act by removing a whole section and replacing it with another. That section related to the immunity of the Armed Forces from the Act. That amendment of primary law was made by an order under the 1972 Act. I remember that occasion clearly, because I asked an embarrassing question of the Minister who was taking through the order: what difference would it make if this House rejected the order? The answer, of course, was none whatever, because the order was being taken through under the 1972 Act of accession. So perhaps we are not quite in such uncharted waters as we might have thought.

Lord Bassam of Brighton: My Lords, I join the noble Lord, Lord Richard, in being rather puzzled by this debate, although I thank the noble Lord, Lord Jenkin, for at least giving me advance notice of it.
	At Second Reading, we went carefully over why a new Bill was required. I answered the points made and did so again, I thought fully, in the letter to which the noble Lord, Lord Jenkin, referred. We need a new Bill. Each Bill builds on another. This is hardly new territory, because noble Lords opposite will recall that they were the progenitors of a Bill back in 1994 that began this process.
	The noble Lord, Lord Jenkin, pointed out that we were bringing forward further sweeping changes, particularly in Clause 3, to which the noble Lord, Lord Kingsland, has also referred. Those changes were called for in considerable measure during the Second Reading debate. I listened to it. My noble friend Lady Ashton listened to it, as did my noble and learned friend the Lord Chancellor. We have reflected further on those issues and we have brought forward amendments to which I expect to receive welcome support from the Benches opposite.
	This Bill demonstrates that the Government are prepared to listen to those who criticise them and to bring forward thoughtful and sensible measures. Noble Lords opposite really need to understand and to get their act together, because on 14 April, I think, the Conservative Party produced a press release, which I do not have to hand, crediting the Government for making major amendments to the Bill and giving its support for that. I know that the Bill is supported by business. The CBI and the Institute of Directors have written to us. Today, I received a letter from the—

Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord for the amendments that he has brought forward, which I welcome. But can he give me just one example of a regulatory measure that could be got rid of by the Bill, as amended, that could not be achieved under existing legislation—just one example?

Lord Bassam of Brighton: Well, my Lords, I can give the noble Lord an example quoted in annexe A to the letter that I sent out towards the end of last week. It is a simple example regarding the reform of tree preservation orders and the system relating to it. The noble Lord laughs at that, but many such measures cannot currently be dealt with under the Regulatory Reform Act 2001. This will make a change. Another example is the Game Act of 1830 or thereabouts—it was quoted in the correspondence. There are many such small measures and that is why the Federation of Small Businesses has written to Peers involved in this afternoon's debate making a very effective case for this Bill. It simply says:
	"I urge you to support the Legislative and Regulatory Reform Bill".
	I shall read into the record a paragraph from its briefing because it deserves to be there. It states:
	"I believe that Clause 23.2 subsection (b), which states 'regulatory activities should be targeted only at cases in which action is needed', is one of the main reasons to support this Bill. It shows just the sort of pragmatic, targeted approach to legislation that smaller businesses have been crying out for".
	Noble Lords opposite have a choice. They should back this Bill. Yes, we can have arguments and, yes, we can have criticisms about the detail but the noble Lord, Lord Goodhart, made the point—the time to object to this was earlier. This Bill received a Second Reading and it has the support of another place. I think that we should get on with the business of dealing with the Committee stage this afternoon.

Lord Kingsland: My Lords, I think the question that my noble friend Lord Jenkin of Roding put was rather different from that which the noble Lord suggested. My noble friend's question was that, given that the Bill is now shorn of the principal characteristics that distinguished it from the 2001 Bill, why cannot we simply amend the 2001 Bill rather than go to the trouble of establishing a completely new Bill—which will absorb an enormous amount of time in both your Lordships' House and another place? That was the question.

Lord Bassam of Brighton: My Lords, we are here as a revising Chamber. This Bill does things that are different and it works in a different way. I explained that to the noble Lord at Second Reading and I explained it in the detailed correspondence that I sent out to all noble Lords involved in that debate.
	I ask this House simply this question: do noble Lords want to join those bodies that are a progressive force in this country and which want to institute sensible change and which deal with things in a pragmatic way? The noble Lord, Lord Peyton, said that in his view we had had a change of heart, as it were, and that somehow I was satanic in my efforts to bring about greater measures of deregulation. I do not care whether I am Satan or not; I should like to get on with this Bill and make some changes that are important to this country.

Lord Jenkin of Roding: My Lords, I do not propose to ask the House to divide but I do say that—

Lord Grocott: My Lords, I remind that House although we cannot have points of order, the rules of debate are clear—the Motion has been put and the mover of the Motion has responded to the Motion. Without wishing to cut any debate, I think that it would be very odd if there was further discussion now.

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
	Clause 1 [Power to remove or reduce burdens]:

Lord Goodhart: moved Amendment No. 1:
	Page 1, line 6, leave out "he considers"

Lord Goodhart: In moving this amendment, I shall speak also to Amendment No. 50.
	This is, at last—after a slightly unexpected interval—the beginning of the Committee stage of this Bill. The Bill was undoubtedly improved by government amendments in the House of Commons and will be improved by further amendments from the Marshalled List and certain further amendments beyond that, which have not yet been tabled but which will be introduced in your Lordships' House. I note with particular interest the Government's acceptance of the need to remove Clause 3, which was the subject of considerable debate at Second Reading. I understand that the Government are now considering bringing forward alternative provisions for dealing with Law Commission Bills, although those are unlikely to be available until Report, when it may be necessary to ask for a Recommitment. I welcome those proposals in principle. However, while I am a strong supporter of the Law Commission and I am anxious to see more of its draft Bills on the statute book, I am afraid that Clause 3 is not the way to deal with that problem.
	The purpose of Amendment No. 1 is to alter the test in Clause 1 from the subjective to the objective. Clause 1(1) states:
	"A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2)".
	Subsection (2) says:
	"That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation".
	I have described the present position as a subjective test. The Government will say that the test as it stands is not subjective, and to some extent I accept that they will be correct because the Minister's decision is subject to judicial review. It is well established law that a Minister's decision can be quashed if it is irrational, although in this case, again as the Bill now stands, it would be a matter not of quashing that decision but of declaring incompatibility. It is well established law that a Minister's decision can be quashed when no reasonable Minister could have reached that conclusion if he or she had taken all relevant considerations into account. But there is still a significant subjective element here. It is rather like the difference between proof beyond doubt in a criminal case and proof on the balance of probabilities.
	As the Bill now stands, anyone seeking judicial review would have to show that the Minister's decision that the order would serve the purpose set out in subsection (2) was wrong beyond reasonable doubt. It is not enough to show that that decision was probably wrong. Of course, there are times when the subjective approach in drafting is appropriate but there are also times when the objective approach is appropriate. The Bill confers exceptional and very unusual powers, including a general power to amend much primary legislation by secondary legislation. I recognise that that is not unique, but the Bill considerably extends the powers in the 2001 Act and I believe that it falls into a class where a fully objective test is needed in Clause 1.
	Amendment No. 50 applies the same principle to whether the conditions in Clause 4(2), which limit the powers of a Minister, are satisfied. The test here, we believe, should also be objective and not semi-subjective. I recognise that in that respect we go further than the tests in the 2001 Act, where the semi-objective test was applied, but, again, I believe that that is justified by the extension of the circumstances in which this power can be used.
	Amendments Nos. 27 and 39, which are in a separate group, raise a very similar issue. As they stand in my name and that of my noble friend Lord Maclennan, it may be convenient to deal with them here and not speak to them separately. Amendment No. 27 applies the fully objective test to the power under Clause 1(8) to make consequential, supplementary, incidental or transitional provisions, including a power to amend or repeal primary legislation. I believe that such legislation should be appropriate and not just appropriate in the opinion of the Minister, at least if and in so far as it applies to primary legislation. Amendment No. 39 contains a similar provision in relation to consequential orders made under Clause 2.
	I believe that these four amendments are important and that it is desirable that, in all the cases covered by the amendments, the test should be the fully objective one and not the hybrid—semi-subjective, semi-objective—test that the Bill now contains. I beg to move.

Viscount Allenby of Megiddo: I have to inform the Committee that, if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 and 4.

Lord Norton of Louth: I put my name to this amendment and I wish to reinforce what the noble Lord, Lord Goodhart, said. I do not intend to repeat what he said but I want to pick up on the letter from the Minister, to which reference has already been made. In that letter, he seeks to defend the retention of these words in the Bill on the basis that the noble Lord, Lord Goodhart, mentioned—that is, that Ministers are under an obligation to act in a reasonable way and can be struck down if they act irrationally.
	The Minister has to act on the basis of the evidence before him and he has to reach a rational conclusion. He must not take into account matters that are irrelevant. On my reading, that does not preclude the Minister from considering evidence that he considers relevant and reaching a conclusion that is not, on the basis of his reading of the evidence, irrational. His consideration may not be wholly objective, but it may not necessarily fail the test established in the Javed and Padfield cases, to which the Minister refers. As far as I can see, the letter from the noble Lord does not make a case for retaining in the Bill the words that the amendment would remove.
	If we take the Minister's argument that the Minister has to act rationally—and, in the noble Lord's view, objectively—presumably the words are superfluous. So why should not the reference to what the Minister,
	"considers would serve the purpose in subsection (2)",
	be taken out? As far as I can see, that either provides for objectivity or has no effect at all. Either way, I can see no argument for retaining those words. I think that that clarifies matters and moves one from a position of semi-objectivity to one of objectivity, which is wholly desirable.

Lord Borrie: I oppose the amendments in this group. At Second Reading, the noble Baroness, Lady Wilcox, rightly said of the Bill that,
	"its potential benefit and effectiveness are hard to predict, since they are reliant on the political will of Ministers to take advantage of the Bill's powers and use them effectively".—[Official Report, 13/6/06; col. 130.]
	The basis of the Bill is to make some advance—although we have already had some discussion on how much advance it makes—on the 2001 Act to remove regulatory burdens. We shall have full discussions on what that means. It seems to me that the initial lead must come from Ministers; it must be based on the fact that the Minister considers that such-and-such regulatory burdens should be removed. Of course, as the noble Lord, Lord Goodhart, has pointed out, because of his amendment to a later clause, a number of preconditions have to be satisfied before these powers can be used.
	I fully agree with—although I am not bound to—the legal interpretation of the noble Lord relating to judicial review. Without going into the detail, I accept his point that the test, as it stands at the moment—"he considers" and so on—is not fully objective. I see the noble Lord nods in agreement. I think that that point is right. If the test were fully objective and we had, as it were, full scope for judicial review every time that the Minister wanted to remove regulatory burdens, that would seem to elevate judicial accountability over political accountability. That would be quite inappropriate to this matter, on which I believe that the Minister must take the lead, must take political responsibility and must account to the media and to Parliament for what he is doing. I think that the amendment would unduly hobble the Minister's efforts to do what people on all sides of the House suggested at Second Reading is desirable; namely, be effective in removing regulatory burdens.

The Earl of Onslow: When I first read the amendment, I thought that it was completely unnecessary. I assumed that, when Ministers used a power, they would do a little bit of considering, because that is what taxpayers pay them for and that is why they go into politics. They have to consider issues. I now understand, as I did not before, that the words in the Bill are either otiose or give the Minister too much discretion, as my noble friend Lord Norton said. As noble Lords well know, I am frightened of ministerial power and do not like it. If, by including the words "he considers", you allow the Minister much greater latitude than intended, we ought to take them out. If, on the other hand, the Minister says that that is unnecessary and otiose, they should also come out. My noble friend Lord Norton makes an extremely good point, and I thank him for explaining quite a complicated issue in such a simple way.

Lord Forsyth of Drumlean: I do not wish to detain the Committee for too long or go over old ground, but this amendment, which I support, is important. It makes a distinction between arbitrary use of power by a Minister and clear criteria. I do not know why I am not on the Minister's Christmas card list; I did not get a copy of his letter. Perhaps he sent it to me, but I have not seen a copy until this afternoon, when my noble friend Lord Jenkin kindly gave me his.
	I do not know if I am being thick but, moments ago, I asked the Minister whether he could give some examples of deregulatory measures which could not be dealt with under the 2001 Act. In the appendix to the Minister's letter there is indeed a reference to tree preservation orders and the amount of letter writing and bureaucracy involved in getting them. At Second Reading, the Minister made the point about game dealers. For the life of me, I still cannot understand why these measures could not be dealt with under the 2001 Act. The appendix sets out particular difficulties in the criteria and drafting of the 2001 Act, which could be dealt with by simple amendment.
	The amendment of the noble Lord, Lord Goodhart, is therefore important. I am concerned that this Bill gives Ministers powers for which they are not accountable to Parliament. When one sees woolly phrasing such as this, it means either something or nothing. If it means nothing, let us take it out. I would be grateful if the Minister could help me with this when he replies.
	My friends in the CBI come up to me and say "British business has an enormous regulatory burden which must be got rid of"; they do not say "We are particularly concerned about the tree preservation orders and gaming". From what the Minister says in his letters, both these points could be dealt with by simple amendment to the existing legislation, even if there is a problem. Given that these are the only examples he can come up with which cannot be dealt with under existing legislation, I find this worrying.
	Returning to the arguments that the Minister sets out in his letter—which should be widely available—he seems to suggest that the real problem is that Whitehall finds dealing with the 2001 Act rather a burden. At one point, he suggests that civil servants in Whitehall find it almost as difficult to deal with the 2001 Act as to introduce a Bill. Perhaps I have not been modernisedand am a bit old-fashioned, but I think it should be extremely hard to change the law. People should have absolute clarity over what the law is. I support this amendment, and if the Minister is inclined to resist it, my concern about what is the underlying motivation for continuing with this legislation will increase.

Lord Tebbit: There is good sense in the amendments. If there is no ulterior purpose in the legislation then the words "which he considers" are otiose.
	The noble Lord, Lord Borrie, and I were partners—in a purely professional sense—for a couple of years, while he was director-general of the Office of Fair Trading and I was Secretary of State for Trade and Industry. Of course, we had discussions about regulatory matters and things of that kind. I only ever disagreed with one of his recommendations, over the trifling matter of the market in condensed milk, which he thought rather more important than I did. My point is that on one occasion one of his recommendations to me was so compelling and obvious—indeed, I had come to the identical conclusion some time before—that I said to my officials, "That's it then; we'll say today that we agree with the director-general". "No," said my private secretary, "we'd best not do that because somebody might bring an action for judicial review on the grounds that you hadn't considered it for long enough". So arcane matters are involved, but the point of that story is that it seems to me that the legislation that gives power to a Minister to do certain things assumes that he will use that power in a considered way. Therefore, these words are at best otiose and, if not, possibly harmful.

Lord Stoddart of Swindon: I have a little worry about this amendment. It takes out "he considers", but Clause 1(1) states:
	"A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2)".
	If "he considers" is taken out, who will decide whether it would serve the purpose in subsection (2)? If the Minister does not take responsibility, who will? That question has to be answered. Will it be civil servants? Many proposals will undoubtedly be put forward to relieve us of the altogether too many regulations that have been imposed on us over a very long period. No doubt, the Minister will explain in his winding-up speech, but I am worried about that.
	I did not receive the letter to which the noble Lord referred, but I am interested in the example he gave. I hope that the Bill will help me in some way because I have a tree on which a preservation order has been placed. I understand that without the permission of the local authority, I am not able to snap or cut one twig off that tree and there is a penalty of £2,000 if I do. Since the tree overhangs the pavement and a bus route, it could be a very expensive business if I am not allowed to cut little twigs down. So I hope that this is one of the little regulations that might help poor little householders take a few branches or twigs off their trees that the local authority, without any proper consultation, has slapped a tree preservation order on.

Lord Lloyd of Berwick: I hope that the Minister will deal carefully with the question raised by the noble Lord, Lord Tebbit. It seems clear that the Minister would not make an order unless he considered it would serve the purpose in question and therefore the words "he considers" are otiose.

Lord Kingsland: I support the amendment tabled by the noble Lord, Lord Goodhart, and I wholly endorse the argument he advanced in support of it. I have only one question for the Minister, which is in the context of the words in the previous Act. In the 2001 Act, the equivalent provision states that,
	"a Minister of the Crown may by order make provision for the purpose of reforming legislation ... with a view to one or more of the following objects".
	It goes on to list a series of purposes, one of which is identical to the one we are considering in subsection (2). Nowhere do the words "he considers" appear. So I presume that this is one of the deliberate qualitative differences between the order-making powers in this Bill and those contained in the 2001 Act. Is that so? If it is, why has this change been necessary?

Lord Bassam of Brighton: I shall deal with the two amendments of the noble Lord, Lord Goodhart, and with Amendments Nos. 27 and 39, which he, in friendly terms, grouped with them. I will deal with those in turn.
	For an order to be laid under Clause 1, the Minister must consider that it serves the purpose outlined in Clause 1(2) and satisfies the preconditions in Clause 4(2). Our view is that these are real tests. That is because the Minister is under a public law duty to be reasonable when forming a view on whether the order is within the terms of the order-making power in Clause 1 and meets the preconditions in Clause 4(2).
	The duty for a Minister to be reasonable connotes an obligation not to take into account irrelevant considerations and act for improper purposes or in bad faith. It also requires—and perhaps this is the most important element—the Minister to reach a rational decision.
	In the correspondence, which has been referred to on several occasions, I quoted the case law. I have no intention of going over that again, but it makes the point. The case law shows that the existing subjective tests in the Bill are real ones. Furthermore, the ministerial opinion requirement in the Bill is not new. It has worked well under the 2001 Act and, before that, the 1994 Act. There is absolutely no evidence, therefore, that this should be changed under this Bill.
	The Minister's opinion that he considers an order would serve the purpose in Clause 1 and the preconditions in Clause 4 is subject, as we have argued before, to stringent parliamentary scrutiny. The relevant committees of either House can veto any order if they do not consider it appropriate, and, unless the committee's veto is overturned by resolution of its House, all further proceedings on the order will be halted. The two Houses have equal status regarding the scrutiny of orders. A veto in either House would mean that proceedings are halted and the Minister would be required to withdraw the order.
	The Delegated Powers and Regulatory Reform Committee writes in its report:
	"When either House or a Committee considers a proposal, they can form their own judgment of the Minister's assessment as to whether the preconditions have been met and can disagree, if necessary reporting against the proposal".
	The Government agree with the Delegated Powers and Regulatory Reform Committee's report that the reference to ministerial opinion does not in any way weaken the requirement for the Minister's opinion to be reasonable and subject to rigorous challenge; it simply ensures that the detailed challenges and decisions—over, for example, what constitutes a necessary protection in a particular case, or how to balance the removal of an obstacle to productivity against an increase in financial costs for some—should be made only by a Minister, subject to Parliament'sagreement. They should not themselves be matters on which the court can substitute its own judgment.
	The Regulatory Reform Committee in another place, in its report on the draft Bill, as introduced to the Commons in January, was wary of,
	"passing to the courts the task of forming judgments about the outer edges of what is essentially political",
	and suggested the parliamentary veto as a way of addressing that. As noble Lords know, Parliament has a statutory veto over any proposed order.
	It seems to me, as the Minister, that this is right. It is appropriate that relevant parliamentary committees judge whether a particular order is appropriate, and, as the Commons Regulatory Reform Committee puts it, about,
	"what is essentially political",
	a point made by my noble friend Lord Borrie. While the court should be empowered to do so only in extremis there are occasions where the Minister may have disregarded the public law duty, and it is right to challenge that.
	The committees' judgment obviously will be informed by the evidence that the Minister provides in the explanatory document, which must be laid alongside the order. Among other things, that document ensures that there must be an explanation of the powers under which the order is made. It must introduce and give reasons for the provisions. It must explain why the Minister considers—

The Earl of Onslow: The Minister has gone on at considerable length about the reason behind what should be done. I have some sympathy with him there. He is not answering the infinitely simple question posed by the noble and learned Lord, Lord Lloyd of Berwick: why is the word "considered" needed? Some of us are suspicious of it. Is it otiose or not? The Minister must answer the noble and learned Lord's question.

Lord Bassam of Brighton: I shall come to the point; it is fair to remind me of it.
	I want to go through the process because I think that the Committee needs to understand the import of how we see it working. It is right that the Committee has that opportunity. It is also right to explain in some detail how the system will work.
	The document must include, so far as appropriate, an assessment of the extent to which an order under Clause 1 would remove or reduce any burden or burdens. It must also identify and give reasons for any power to legislate conferred by the order and the procedural requirements attaching to those powers. It should also provide details of any consultation undertaken and any representations made as a result of consultation. That information will form the evidence for the rationale of making the order and will be an important source for committees to make their judgment on the merits of particular orders.
	The Committee will be aware that it is government policy to submit alongside any legislation that has an impact a regulatory impact assessment that identifies all the costs associated with regulation, as well as the benefits, and quantifies the likely costs of compliance on those affected by the regulation—either private or voluntary organisations.
	If Members of the Committee believe that they require more evidence, they can request it either from the Government or from stakeholders they consider relevant. They can require an order to be subject to the super-affirmative procedure—and then recommend that a Minister should make specific amendments. Ultimately, if there is a disagreement with the Minister's view—his consideration—that is insurmountable; they have the statutory right to veto an order. Those procedural safeguards allow for an appropriate and in-depth scrutiny. For those reasons, the Government cannot agree to the amendments tabled by the noble Lord, Lord Goodhart, and others.
	I shall turn to the second set of amendments which the noble Lord, Lord Goodhart, invites us to consider. An order may make such consequential, supplementary, incidental or transitional provision—including provision made by amending or repealing any enactment or other provision—under Clauses 1 and 2, as the Minster making it considers appropriate. The noble Lords, Lord Goodhart and Lord Maclennan, propose that the wording in Clauses 1 and 2 should be changed to read "is reasonably required".
	The amendments are unnecessary. As I am sure the Committee understands, a Minister is in any event under a public law duty to form a reasonable view of what consequential, supplementary, incidental or transitional provision is appropriate. Those provisions mirror Section 1(5)(c) of the 2001 Act and, as far as I am aware, that provision has caused no practical difficulties to date.
	Furthermore, the Bill includes provisions for stringent parliamentary scrutiny, as I have already described on several occasions—in particular, in dealing with this amendment. If the relevant committees of either House object to any part of the order, including any consequential, supplementary, incidental or transitional provision, they can require the super-affirmative procedure and suggest amendments and, ultimately, have the power to veto the order—a process which I had somewhat hoped would satisfy the noble Lord, Lord Forsyth, who clearly wants to see a rigorous test to judge whether orders are right.
	I do not think that the words "he considers" are otiose. It is right that it is the Minister's view that counts. The words show that it is the Minister who takes responsibility; it is the Minister who is held to account. That is why we reject the amendments. We do not think that a case has been made to strike the words from the Bill. I invite noble Lords to reflect on what we have said this afternoon, and to think further before Report. I hope that the noble Lord will withdraw his amendment.

Lord Kingsland: Is the Minister saying that there is a difference between the Bill and the 2001 Act, or not?

Lord Bassam of Brighton: I thought I made it clear that the words have a similar effect to those in the 2001 Act. That was the point that I just made.

The Earl of Onslow: The Minister has still not told us the difference between his attitude to the word "considers" and his attitude to its being left out. Can he please do so?

Lord Bassam of Brighton: I thought I had made that point. The noble Earl obviously disagrees. It is important that the Minister is put to the test and has to give consideration. It is his consideration; it is a considered view. It is therefore important that it is in the Bill and is a subjective test. Otherwise, the element of the Minister taking a lead in deciding the matter is not operable in the way in which the legislation attempts to make it.

Lord Norton of Louth: This is not a test in any circumstance. Given the political framework, which the Minister has spent some time outlining—so before the matter ever gets to the courts, political control is being built into the Bill—I cannot see what is to be maintained by keeping these words. Can the Minister explain what difference it would make if they were taken out?

Lord Bassam of Brighton: As the noble Lord, Lord Goodhart, explained very well in his introduction, the words would shift the test away from being a subjective, accountable, political decision to being what he contends is an objective test. We insist that the subjective test is the right one because it puts the Minister at the heart of the decision-making. That is right in a parliamentary and democratic system.

Lord Stoddart of Swindon: Have there been any difficulties since the 2001 Act was passed which make this insertion necessary?

Lord Bassam of Brighton: The wording in the 2001 Act is pretty much the same wording that we have put into the Bill. There have been no difficulties with the existing wording in the regulatory reform order process in the way in which we have tried to use it. As I have explained before, we have not made as many regulatory reform orders as we would like because the process is onerous and rather cumbersome. That is an important debate in itself, but the wording that we are putting into the Bill is very similar, as I understand it, to the wording in the 2001 Act. I think that that wording has worked well.

Lord Forsyth of Drumlean: Is the Minister saying—if he is, I might change sides—that the 2001 Act, which I confess I have not studied, has the phrase "he considers" and that there is no change? I thought that my noble friend had suggested that there was a difference. Either it is the same or it is different. If it is different, we want to know why. Would it be helpful if I continued talking while the seventh cavalry arrived in aid of the Minister? That is the crucial aspect. I do not think that any of us wants to make the Minister's life more difficult.

Lord Bassam of Brighton: I did say that the ministerial opinion requirement in the Bill is not new. It has worked well under both the 1994 Act and the 2001 Act; so it has its origins in legislation with which the noble Lord will be extremely familiar. I repeat that there is no evidence that this needs to be changed in the Bill. I am advised that the wording is different, but at the margins. For the benefit of precision, one should be clear.

Lord Forsyth of Drumlean: That will not do. The Minister has spent the past 10 minutes telling us that the wording was more or less the same. He is now telling us that it is different, and he appears to have only just discovered that it is different. We want to know why it is different.

Lord Bassam of Brighton: I ask the noble Lord to reflect on what I said. The ministerial opinion requirement is not new, but the wording is different—that is the point. The ministerial opinion requirement is carried over from the two earlier Acts. That the wording might be different is not the point; the opinion is the issue.

The Earl of Onslow: Does the Minister say that the Minister has to consider under the old Act? If not, why change it? If it is to be changed, what is the reason? That is the question that we have all been asking and asking. I hope that we will go on asking it until the Minister finally comes up with the right answer or an answer that is clear and easy to understand. But "I hae ma doots", as they say.

Lord Brooke of Sutton Mandeville: Before the Minister has sufficient time to consider the advice that he has just been given, does he recall the definition in Blackstone's law dictionary of an act of God as an act which no reasonable man would expect God to commit?

Lord Bassam of Brighton: That is brilliant, and the noble Lord is probably right. The important point is that the test in the 2001 Act is not wholly objective. In our view, the words in the Bill are rightly not objective. I am happy to do the research and provide the precise wording so that noble Lords can have a comparison between the two. As I said a few moments ago, however, the ministerial opinion requirement is not new. It is the same as the requirement in legislation that we carried over from 2001, and by implication it is the same as was there in 1994. Noble Lords opposite clearly thought at the time that the subjective test was the right one because it was their legislation, and they argued for it. That is the key point.
	Use of the words "he considers" puts the onus on the Minister to give evidence and justify the proposal, and it is for Parliament to determine whether it agrees with that evidence. It is the same process as that used for primary legislation and, given that these powers are for changing primary legislation, that is important. It is right that judicial review is reserved for circumstances where the challenge is whether that view is reasonable. I return to the point: it is right that the court does not substitute its decision for the Minister's. That is why the term "he considers" is very important to this legislation. It was important in 1994 and in 2001 and it is important in this Bill.

Lord Goodhart: I should like to express my gratitude to the noble Lord, Lord Norton of Louth, for putting his name to the amendment and speaking in support of it and to all other noble Lords who spoke in support of it. Some noble Lords spoke the other way. The noble Lord, Lord Borrie, was concerned that our proposals might increase the scope for judicial review. However, I do not think that that is likely. However it is phrased, those who are upset by a decision will be strongly tempted to apply for judicial review if the case is sufficiently important. With these amendments, those who object may be more likely to be successful.
	The noble Lord, Lord Stoddart of Swindon, raised a question of great importance; that is, who will take the decisions? Perhaps I may deal with that briefly. I hope very much that if the Bill goes through, Parliament or your Lordships' House will block any attempt by Ministers to use it in circumstances where there is serious doubt about the propriety or legitimacy of doing so. However, that may not happen. It may not happen in the House of Commons because of a whipped vote which supports the order over the objections of the committee reporting on it. It may not happen in your Lordships' House because our powers are reduced. But if Parliament is unable to put the matter straight then of course the burden falls on the courts through judicial review, and the question here is what test the court should apply. Should it be necessary for the objector to satisfy the court that the decision was not only wrong but so wrong as to be irrational, or is it sufficient to show that, looking at all the circumstances, the decision was simply wrong?
	The Minister said that this means that the decision of the Minister would not be political. I do not think for a moment that that is correct. It is not the politicality of the decision that renders it subject to being quashed. For instance, it is quite irrelevant that the opposition party might have taken a different view had it been in power and would not have taken such a decision. The courts will not quash an order simply on the grounds that it is political, but what they could and should look at is whether in fact the order would serve the purpose under Clause 1 of,
	"removing or reducing any burden, or the overall burdens".
	Here I speak without looking at the question of whether that provision is going to be amended. Further, looking at Clause 4, which is the subject of Amendment No. 50, the question the court should look at is whether the policy objective intended to be secured by the provision could have been satisfactorily secured by non-legislative means; does the provision remove any necessary protections and so forth? These are not political decisions but ones on the interpretation of the Bill. Further, owing to its special nature and the extraordinary power it gives to override primary legislation by secondary legislation, in the circumstances I believe it right that the decision should be a wholly objective one and not what I have described previously as a hybrid, semi-subjective one.

Lord Williams of Elvel: The noble Lord has spelt out his case very carefully and we are grateful for that. What he is saying, in essence, is that a Bill should be amended to allow the courts, and none other than the courts, to decide whether or not an order should be approved. That is politically rather sensitive, if I may say so.

Lord Goodhart: With respect to the noble Lord, that would be the position anyway because secondary legislation is always subject to judicial review and can be quashed for being ultra vires or irrational, or for various other reasons.

Lord Borrie: The noble Lord, Lord Goodhart, has admitted that although judicial review can apply in any case, it is more likely to be successful if the words "he considers" are removed.

Lord Goodhart: Yes, indeed I do. It is obvious because it is a case where the objector does not have to go as far as showing irrationality in the decision. It only has to go as far as showing that the decision reflects the judge's view that the condition does not satisfy the wording of the Act. It is basically a question of who interprets the legislation. In a case of that kind, given the very considerable powers conferred on Ministers by this Bill, they should be counteracted by strengthening the powers of judicial review over those decisions.
	In those circumstances, I will ask the leave of the Committee to withdraw the amendment.

The Earl of Onslow: Before the noble Lord withdraws the amendment, perhaps I may point out to him that it sits on just one word. I believe it is customary that if we introduce a further amendment on Report, we will have to alter the wording somewhat. How can this amendment be altered? It is a terribly simple point. I come back to what the noble and learned Lord, Lord Lloyd of Berwick, said—and he ought to know, he is a Law Lord. How can an amendment of one word, having been withdrawn, be altered at Report stage?

Lord Goodhart: I am unaware of any such rule as the noble Earl, Lord Onslow, suggests. I have, over and over again, withdrawn amendments and brought them back at later stages. I think that that applies to this Bill as much as to any. In the expectation that the amendment will be resurrected in the same form at Report stage, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Wilcox: moved Amendment No. 2:
	Page 1, line 6, after "he" insert "or any person suffering a disproportionate burden resulting from any legislation"

Baroness Wilcox: I hope that this will refresh the Minister, and perhaps I can get my own way on the Bill.
	In moving Amendment No. 2, I shall speak also to Amendments Nos. 3 and 4. This group of amendments seeks to test the process of consultation that is in place to deal with representations from business and organisations about the regulations to which they are subject. The process of initiating an order under Clause 1 begins with the Minister considering whether any order would serve the purpose of removing or reducing any burden, but there is no duty on the Minister to initiate such a process. We have tabled amendments, which will be debated later today, that impose a duty on Ministers to deregulate, but the purpose of this amendment is to make the consultation process on regulation more transparent.
	If a Minister does not think that a representation has merit or that the burden is not disproportionate, then this amendment would require the Minister to let Parliament know formally. This, we hope, would focus the minds of Ministers and their officials to justify why regulations that seem to be placing a disproportionate burden on business and individuals are remaining in force. More importantly, Parliament could see what regulations seem to be attracting the most amount of criticism. In addition, this would be a guaranteed way of ensuring that Parliament would see why the Minister has decided that the burdens complained of are proportionate.
	I draw support for this idea from the Better Regulation Task Force report to the Prime Minister entitled Less is More, which was published in March 2005. Recommendation 2 of that report states:
	"The Task Force recommends that by the end of 2005 the Regulatory Impact Unit in the Cabinet Office, should, in consultation with departments, develop a robust mechanism for the submission of proposals for simplification by business and other stakeholders. The mechanism should require businesses and other stakeholders to submit evidence in support of their proposals, with options for reform. It should require departments to respond within 90 working days, setting out and justifying the course of action they propose with a time limit for delivery".
	Our amendment seeks to get the ideas in this recommendation into statute. I understand that Clause 14 deals with the consultation process after the Minister has proposed to go ahead with an order, but could the Minister shed some light on the consultation process on existing regulations? In particular, I would welcome an update on the implementation of recommendation 2 of the report. What formal mechanisms are now up and running to vet individual representations about regulations? The Government's response to the report states that the full process for dealing with simplification proposals will be launched by December 2005. Is this on course?
	I also understand that the Government were to submit to the Better Regulation Commission a six-monthly update on progress with the implementation of the recommendations. Can the Minister explain when that report, which is now due, will be available, and whether it will be made public? I beg to move.

Lord Bassam of Brighton: I welcome the noble Baroness's positive approach to the Bill, which is in sharp contrast to some other contributions that have been made this afternoon. I welcome the fact that the amendment focuses on those who consider that they are suffering from disproportionate burdens and the way in which it questions the Government's management of representations from those who believe that to be the case. The intention behind the amendment is entirely laudable and praiseworthy, but perhaps a fraction misdirected. I shall explain why we think it is unnecessary.
	The noble Baroness drew attention to the Better Regulation Task Force report, brilliantly entitled Regulation—Less is More, published in March of last year. She quoted the chunk of the report which I, too, was going to quote in advancing the Government's case, so we will not bother with that. But suffice it to say, there is clearly agreement across the Chamber on these issues.
	In September last year, the Government put in place the better regulation portal. As I have described to the noble Baroness and others outside the Chamber, it is an online mechanism for those regulated to submit simplification proposals. The better regulation portal is but one method that can be used by stakeholders for the submission of simplification proposals. Stakeholders can simply submit proposals in a number of other ways—by letter, e-mail, through existing contact with departments and through the industry-wide and government fora that exist. All departments are committed to responding to these simplification proposals within 90 working days, setting out and justifying the course of action they propose and, if possible, a time limit for delivery.
	The scope of the initiative includes all existing regulations which affect the private, public and voluntary sectors across domestic and European issues. So far we have received 330 proposals—121 through the portal, 38 by e-mail and 171 by correspondence. Of these proposals, 28 reforms are being taken forward by the respective departments responsible for the policy and 50 have been declined. The remaining 252 proposals are still under active consideration by departments and are in the process of being responded to.
	One example of a measure received through the portal process and acted on by a department relates to form 42, a report on employment-related securities—any transfer or issue of shares—required by Her Majesty's Revenue and Customs. That form was causing annoyance to small and medium-sized enterprises; the cost to businesses has been estimated at £200 per form. Acting on this suggestion, the Chancellor announced in the 2005 Pre-Budget Report the removal of the requirement for over 90 per cent of UK companies to fill in form 42. I understand that this burden has been removed from more than 300,000 companies, saving them £200 per form—an estimated saving to the UK economy of £60 million.
	I accept that this is one example of the successful approach of using the portal, and I am sure that there will be occasions on which proposals are not taken forward. That might be for a number of reasons. In some cases, proposals are based on a misunderstanding of the regulation, and responses clarify the fact that there is no legal requirement to undertake a specific training course on portable appliance testing, for example. In others, it is hard to see the benefit of changing legislation to, for example, make tax discs square rather than round. Departments will also need to consider proposals in context and may need to weigh up a number of factors before deciding whether to go ahead with a particular reform.
	Given the volume of proposals received it would be impractical to lay a report before Parliament setting out the reasons why a proposal to make an order was declined, which is at the core of the amendment. Civil servants should use their finite resources to root out unnecessary bureaucracy rather than invest more of their time in producing lists and writing more reports for Parliament. Of course, we need to identify those who suffer a disproportionate burden from legislation. We are the first Government in the UK to face up to the challenge of identifying and measuring the total administrative costs placed on business, charities and voluntary organisations by government regulation so that we can take action to reduce them.
	The noble Baroness asked about the requirement placed on departments to publish detailed information on both the administrative costs of complying with government regulations and plans for reducing these costs and other regulatory burdens. I cannot give a definite time for the publication of that information, but it will be later this year. Departments are also obliged to report on their better regulation work as part of their annual reports, as they have done for the past two years. Reporting requirements, therefore, are already in place.
	The Better Regulation Executive is developing proposals to improve the effectiveness of regulatory impact assessments. The aim is to improve the clarity with which costs and benefits are presented and to streamline the RIA requirements to make them easier to use throughout the policy development and implementation cycle. The Better Regulation Executive intends to consult on its proposals shortly.
	We must not lose sight of the fact that there are sometimes valid reasons why some activities receive a disproportionate burden from legislation. An example would be the introduction of more targeted, or proportionate, risk-based burdens, such as a more efficient, risk-based inspection regime, where the burden of inspection on those judged to be low risk is reduced at the expense of more onerous inspections for those judged to be high risk.
	The Government make no apologies for targeted regulation that improves standards in public services, promotes competition, ensures fairness at work, helps industry, provides protection for consumers and the environment, and strips away unnecessary or outdated regulations, both here and in Europe. These amendments are unnecessary for the reasons that I have just set out. I therefore suggest that the noble Baroness, having heard about the work that is going on, the timetables for reporting and our commitment to continue consultation with those parts of industry to which a regulation is relevant, withdraws her amendment.

Baroness Wilcox: I listened carefully to the Minister and will read what he said when it appears in Hansard. I am sorry that the Government believe that providing Parliament with a list of reasons why requests have been rejected would be too much of a burden and take too much time. The reason why we are having yet another crack at lifting or easing the regulatory burden on businesses is that nothing moves quickly enough and nothing is done fast enough. That is to a large extent because nothing is transparent. Our intention is to focus the minds of Ministers and their officials on justifying why the regulations that seem to place a disproportionate burden on business and individuals remain in force. If we are unable to see why a request is rejected, how can we pull Ministers and their officials down to a point where they will get on with this job? Given the amount of money that we spend on making lists of this, that and everything else, spending a little bit more on reporting to Parliament is not asking for much. I shall of course ask leave of the Committee to withdraw the amendment, but I am disappointed by the Minister's response and will return to the matter at a later date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 3 and 4 not moved.]

Baroness Wilcox: moved Amendment No. 5:
	Page 1, line 7, leave out second "or" and insert "and"

Baroness Wilcox: The purpose of the amendment is to ensure that the net effect of any order made under this clause would be to reduce the overall burden of any piece of legislation. At present, a Minister could introduce a measure to reduce the burden on one person but in theory in doing so could raise the overall burden on several others. The Minister in another place indicated that the,
	"new clause ... emphasises the reduction in the overall burden".—[Official Report, Commons, 15/5/06; col. 723.]
	But he did not give a cast-iron guarantee that Clause 1 could not be used to increase the overall burden. Emphasis is one thing, but we need a guarantee. As the Bill stands, the Minister can say that he wants to remove a burden even if there is an increase in overall burdens—and that cannot be right. That situation may well be unlikely, but the potential is there.
	I am sure that the Government would like to see the overall effect of any order under this clause being deregulatory and I had hoped that the difference between us on this point was essentially a matter of the drafting of subsection (2). But I fear that the letter that I received from the Minister last week indicates that the contrary is the case. We accept that in introducing an order some burdens might need to be shifted on to others; indeed, that is what the Minister accepted in another place when he said that,
	"it is possible for the burden on some to go up as a new deregulatory process comes into being".—[Official Report, Commons, 15/5/06; col. 783.]
	In the letter that the Minister in this place has sent me, for which I am extremely grateful, he confirmed that flexibility, explaining that,
	"removing or reducing a burden from one person may increase the burdens upon others, so the first alternative could permit an overall increase on persons as a whole, for example where a regulatory regime is being placed on a risk basis costs on low-risk businesses would go down, whilst costs on high risk business may go up".
	But that should not preclude a guarantee written into the Bill that the net overall effect of any deregulatory order is to reduce the overall burden. The clear exposition of this contained in the letter that I received means that the Bill is not necessarily deregulatory at all. In fact, it could be quite the opposite. I beg to move.

Lord Maclennan of Rogart: Amendment No. 53, standing in my name and that of my noble friend Lord Goodhart, would also address the point raised by the noble Baroness about the possibility of new burdens being created by an ostensibly deregulatory lifting of burdens. The point advanced in our amendment is perhaps narrow, particularly in the light of Clause 4(2)(c), but none the less it is important. Clause 4(2)(c), which establishes a precondition, making it not permissible to utilise the powers of the Bill unless it,
	"strikes a fair balance between the public interest and the interests of any person adversely affected by it",
	seems rather widely drawn, since the phrase "public interest" is an omnibus phrase and does not make it clear that it may necessarily involve the specific interests of other individual people who are or may be affected by the proposed change in the law.
	The drafting of our amendment is designed to make it quite clear that the specific interests of different groups of individuals must be weighed against each other and that any measure designed to lift the regulatory burden from one group must be seen to be proportionate in its impact on that other group. I commend our amendment to the Committee.

Lord Bassam of Brighton: Amendments Nos. 5 and 53, as the noble Lord, Lord Maclennan of Rogart, explained, go in the same direction. The power to remove all the burdens resulting from legislation is, as noble Lords will understand, provided in Clause 1. As well as removing or reducing burdens, it could also introduce new burdens, so it may be helpful to explain some of the thinking behind Clause 1(2). As the noble Baroness said, I set some of that out in correspondence.
	First, Clause 1 permits the removal or reduction of any burden that results for any person from legislation. Removing or reducing a burden from one person may, however, as I think is now understood, increase burdens upon others. This reflects the situation under the 2001 Act and could allow, for example, a reduction of burdens on the regulated at the expense of an increase in burdens for regulators. Another example would be the introduction of more targeted, or proportionate, risk-based burdens; for example, a more efficient, risk-based inspection regime, where the burden of inspection is reduced on those judged to be low risk at the expense of more onerous inspections for those judged to be high risk.
	Secondly, Clause 1 also permits the removal or reduction of the overall burdens resulting for any person from legislation. This would permit an order to replace a scheme that imposes burdens on a person with another scheme that is less burdensome overall for that individual. New burdens could be imposed on a person if that was done in the context of reducing the overall burdens that result from legislation for that individual.
	As I said, that was possible under the 2001 Act. For example, the Regulatory Reform (Fire Safety) Order created one simple, risk-based fire safety regime applying to all buildings that the public might use. That reduced burdens on a large number of businesses, but the rationalisation also imposed new, proportionate burdens on some other businesses.
	Amendments Nos. 5 and 53 address the issue of whether orders should have to effect a net reduction in the level of burdens to which a person is subject. In calculating the net level of burdens, it is important to remember that the measurement of burdens is not an exact science. It is difficult to compare the relative impacts of burdens, given the definition of "burden" in Clause 1. These are issues of judgment based on evidence—evidence that, as we discussed, the Minister will weigh and which the parliamentary committees will rightly challenge and confirm where appropriate. For example, Amendment No. 53 seeks to impose an additional precondition stating that any new or increased burdens can be imposed on one person only to the extent necessary for the removal or reduction of burdens on others, and the new or increased burdens must be proportionate to that purpose.
	In any case, the precondition in Clause 4(2)(c) requires that the provisions of an order, taken as a whole, must strike,
	"a fair balance between the public interest and the interests of any person adversely affected by it".
	This would ensure that any new burdens imposed by an order were considered in terms of the wider public interest.
	Amendment No. 53 would require that an administrative inconvenience may have to be weighted against an obstacle to productivity or a sanction. In many cases we can calculate in monetary terms the impact that the removal or reduction of these burdens would have. But in some cases—for example, that of administrative inconvenience falling upon individuals—the administrative inconvenience may not impose a financial cost. In these cases, the different types of burdens being added and removed could be incommensurable, and it would therefore be impossible to compare the burdens imposed on one person with the burdens removed from another.
	Amendments Nos. 53 and 5, therefore, would in many cases dramatically increase the analytical work that would be needed to deliver an order, replicating one of the major problems with the 2001 Act about which there have been complaints, and slow down the pace of regulatory reform by order. In some cases, it would simply not be possible to calculate whether the level of burdens overall had been reduced. The task would be like trying to compare chalk and cheese, so it would not be possible to deliver a beneficial reform by order. I should make it clear that Clause 1(2) allows orders to remove or reduce a burden. The second purpose of removing or reducing overall burdens makes it explicit that new burdens can be imposed on a person where overall burdens for that person are reduced. Since the purpose of the Bill is regulatory reform and cutting bureaucracy, it would be wholly inappropriate for orders to be used to create unnecessary burdens.
	Clause 15 provides that, for orders made under Clause 1, the explanatory document laid before Parliament must include details of the consultation responses received, which could highlight the creation of any unnecessary burdens. The document must also explain why the Minister considers that the preconditions in Clause 4, which include proportionality, are met, and must include an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens. It is government policy that, where appropriate, measures should include full impact assessments.
	The amendments tabled by the Government provide the parliamentary scrutiny committees with the power to veto proposals that they consider inappropriate for delivery by order, and I would expect that proposals that significantly increased red tape would fall foul of that test. As I have explained, the Bill already provides Parliament with an opportunity to assess the impact of any new or increased burdens and to consider the views of those affected. Amendments Nos. 53 and 5 would slow down the order-making process and could prevent beneficial reforms from being delivered by order. In such instances, we would consider that the Bill, which is designed to speed things up and improve the process, had failed in one of its important objectives.
	The second type of failure might be the creation of powers that do not work in practice—for example, because sensible consolidation or the addition of new and better targeted burdens is not possible as part of wide-scale regulatory reform. We might also replicate the problems arising from the 2001 Act and make the powers so complex to use in practice that a prohibitive amount of analysis—as proposed by the amendment—would be required to create an order. It is vital to avoid this. None of us wants to be here in four or five years debating another reform Bill, while businesses and others are still waiting for what we think and they think is an effective vehicle to deliver sensible cuts in red tape.
	The third type of failure that we must avoid would be when orders could be used to deliver proposals that did not have better regulation benefits, including entirely new policies such as major education or health reforms or proposals that implemented burdensome regulatory regimes. The order-making powers in Clauses 1 and 2 are drafted to prevent that but, as the Parliamentary Under-Secretary of State for the Cabinet Office, Pat McFadden, said in another place, we must beware that our efforts to refine the order-making power do not lead us into the second pitfall that I mentioned, so that we end up with a beautiful parliamentary process but not one that has a beautiful, useful deregulatory outcome.
	In view of those comments, I hope that the noble Baroness and the noble Lord will feel able not to press their amendments and will reflect carefully on the points made in the debate.

Lord Maclennan of Rogart: I am grateful to the Minister for his reply, which I will study with great care before later consideration of the Bill, but I am bound to say that, on the face of it, he seems to be trying to have his cake and eat it. On the one hand, he is taking credit for initiating regulatory impact analysis, which he claims that this Government have uniquely advanced, whereas, on the other hand, he is not prepared to consider the adverse deregulatory impact on others in equal detail or with equal precision.
	I do not doubt that the Minister has a point in saying that you might be comparing chalk and cheese, but you could not, if you objectively analysed the impact of the deregulatory burden, fail to determine whether the change was justified or unjustified in respect of whether it had a proportionate or disproportionate impact on a second group of people. Amendment No. 53 was directed at dealing with that issue, as it is not adequately dealt with by Clause 4(2)(c), which speaks only broadly of the "public interest". Consideration of the public interest is not something that necessarily safeguards a particular class of individuals who are potentially adversely affected by the proposed deregulation. However, as I said, I will consider carefully what the Minister said.

Baroness Wilcox: The noble Lord, Lord Maclennan, spoke very well in response and I do not need to repeat what he said; I agree with him entirely. I am very sorry that Ministers in this House and another place only came so close to getting this right. I suspect that this could blow up horribly in their faces within a year or so. However, that clearly is the Government's choice. I thank the Minister for his response but am sorry and regret it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Tebbit: moved Amendment No. 6:
	Page 1, line 8, at end insert "made under powers granted by the European Communities 1972 (c. 68)"

Lord Tebbit: This is what I would describe as a sporting amendment. Although it consists of only nine words, it would have a substantial effect on the Bill and would, if accepted, require substantial consequential amendments. However, if the Committee were to agree to its intent, I do not think that it would be too technically difficult to produce those amendments in time for Report.
	The strongest and most well founded criticism of the Bill is that it would, particularly in the form in which it was introduced in another place, give excessive powers to Ministers to repeal, amend or enact primary legislation without gaining appropriate parliamentary consent. Indeed, it came pretty close in its original form to being a Bill to enable Ministers to take such powers to do such things as they thought they should do without any debate or parliamentary consent. I am sure that all of us who have been Ministers have dreamt quietly at some time in our offices of having such powers. However, in my view—this view also came over very much in the speeches earlier today of my noble friend Lord Jenkin and others—the Bill is still too wide and too deep in its coverage and it would give more power to Ministers than Ministers should really have.
	The intent of the amendment is to restrict the powers of Ministers under the Bill so that they can amend, annul or create only those regulations and legislation that have been created under the powers granted by Section 2 of the European Communities Act 1972. As I mentioned today, those powers are enormously wide. There is not much doubt in my mind, or in most of our minds, that most of the mischief that Ministers say needs to be addressed by this Bill derives from Brussels. That is where most of the irksome, burdensome regulations have come from. The Bill, as I would amend it, would leave those powers there to deal with that Brussels legislation. However, it would deny the powers that the Government have sought to amend primary legislation—and, indeed, regulations—without normal parliamentary procedures. In my judgment—which I think my noble friend Lord Onslow shares—giving such powers to the Executive is really like offering free intoxicating liquor to alcoholics: they will take it—they will grab it—and they will use it.
	My amendment would also remove powers, which might still remain in the Bill, to repeal, make or amend secondary legislation made under Westminster primary legislation. I do not think that Ministers can object to that. They always say that the regulations that they have made are wise, sensible and needed, and that they have not really made very many of them, so it would not be very often that they would want to replace them. It seems to me quite reasonable that when they do want to replace or amend such regulations, they should use their existing powers to deal with them. Wherever a regulation had been made, they would have a power to unmake it. If they deemed that those powers were inadequate, they could argue for them to be increased—perhaps, as was suggested earlier, in a Bill to amend the 2001 Act to make it more convenient to use.
	I hope that the simplification of the Bill will appeal not least to the noble Lord, Lord Bassam, and even more to my noble friends on the Front Bench. I am sure that they will be attracted to restricting the Bill solely to dealing with regulations and other legislation made under the 1972 Act. I can see that my noble friend Lord Waddington is anxious to remind me of his amendment, which comes later. I beg to move.

Lord Waddington: I am not sure that my noble friend's main purpose in moving his amendment was to give publicity to my amendment but it is a useful trailer. It is not exactly a paving amendment but it directs the Committee's attention to Amendment No. 30, which, put in the simplest terms, would provide a machinery, if Parliament so willed it, to reverse provisions which had become law because of the operation of Section 2 of the 1972 Act. It is absolutely certain, as I hope every noble Lord in this Chamber will agree, that a deregulatory measure which does not recognise that most of the burdens on business originate in Europe is mere window-dressing.
	I remind the Committee of certain remarks made by the noble Lord, Lord Bassam, at Second Reading on 13 June. He said, as if it were a matter for congratulation:
	"The Commission has dropped more than 65 proposed pieces of legislation and has undertaken to simplify up to 1,400 individual pieces of Community legislation ".—[Official Report, 13/06/06; col. 123.]
	He said that as a sort of puff for the Commission, suggesting that its heart was in deregulation. But that form of words was deliberately created to conceal the truth. If you read the words carefully, you will see that the Commission is in fact saying that it has not reversed one single provision which has become law since it was invented and that it has not the slightest intention of reversing one single piece of law which it has created since it was invented. It is saying only that it has scrapped some of the nonsense which was in the pipeline and that it is prepared to see whether it can simplify certain other measures. It is a denial of any intention by the Commission to deregulate, and people had better recognise that.
	The Bill currently does not provide the power to deal with regulatory burdens imposed on business by operation of the 1972 Act. If there had been such a provision in law, if Parliament had so willed and if it had been prepared to face the consequences—because there would have been consequences—it could have dealt with the situation mentioned earlier by my noble friend Lord Tebbit. It could, if it so willed, have said, "We will not have those provisions applied to the Armed Forces and, using the provision invented by the noble Lord, Lord Waddington"—in fact, not invented by him at all but adopted by him after it had been invented by Mr Cash in the House of Commons—"we will reverse what otherwise would have been of effect as a result of Section 2 of the 1972 Act".
	To remove the mass of burdens on industry, Parliament needs the sort of provision contained in Amendment No. 30. We will come to that later. I need say no more, but that would give meaning to the expression of will contained in my noble friend's amendment, which I heartily support.

Lord Desai: It is always risky to get into an argument with the noble Lord, Lord Tebbit. I am sure that by speaking to the amendment, I am walking into a big elephant trap. I am somewhat puzzled. Earlier this afternoon the noble Lord reminded us that the Bill was not at all necessary and that a previous Government had, under the 1972 Act, done something through an order which was not opposed by Parliament. So there is an instrument available that allows the Government to do whatever they want without the 1994 Act or the 2001 Act or the 2006 Act. Given that there was some turning against Europe in the previous Government, I am puzzled that they did not use that provision more. If such a powerful instrument exists, why is it that no Government have used it? I have not been a Cabinet Minister, so I do not know, but I suspect that there are considerable problems in using that method of issuing orders to remove things. Depending on one's view—and taking the example given by the noble Lord—you could impose the additional burden on the Armed Forces and remove the discrimination at that stage.
	I am not sure whether this amendment is telling us to use the instrument more or whether, as the noble Lord, Lord Waddington, said, this is a great opportunity to remove the burden of Europe entirely from our shoulders.

Lord Waddington: That is not what I am saying. I am saying that my amendment would allow Parliament, in a particular case, to state that it will not apply Section 2 of the 1972 Act. It is a procedure whereby Section 2 of the 1972 Act could be disapplied, if that were the will of Parliament in a particular case.

Lord Desai: I am very grateful for that explanation. I shall have to think about it between now and Report. I may return to it. A later amendment states that one of the sacrosanct Acts that the Bill shall not be allowed to amend is the European Communities Act 1972. There would be conflict between this amendment and a later one as people may want to protect our constitutional rights and preserve all those Acts. I have no doubt that there are various snares and traps awaiting me. I hope someone will clarify what this is all about.

Baroness Wilcox: My noble friend's sporting amendment, as he referred to it, is typically ingenious and provocative. He is right to draw attention to the fact that, as things now stand, bureaucrats in Brussels may make orders that bind the Parliament of the United Kingdom without this House having any effective power to stop them, while there would be cries of outrage from Europhiles that any parallel order-making power might be conferred on our own bureaucrats to make orders to do away with European Union legislation. That goes to show that there is a one-sided relationship between the United Kingdom Parliament and the European Union bureaucracy, to which the Government would do well to give more serious attention than they have in the past nine years. Indeed, in the past nine years it has seemed as if an unofficial competition has been running between government departments, not about which could remove most EU regulation, but which could gold-plate an EU regulation in the most extravagant and burdensome way.
	Few things have more typified the empty spin and ineptitude of the Prime Minister than his parrot cry that the debate in Europe is coming our way, while all that really comes our way are bucket loads of new draft regulations. Most of us have given up hoping that anything will be done while the Government are in power. They have constantly spoken of deregulation, but all they have done is regulate, regulate, regulate, with gold-plating of EU directives at the heart of it.
	I regret to say that this is the fault not only of Ministers but of Permanent Secretaries in departments that have failed to get a grip on the regulation mania that seems to beset public administration in Europe, slowly but surely strangling our international competitiveness. It is high time that some kind of limit was placed on the amount of legislation and regulation that each department can pass. A little less thoughtless regulation and a little more thoughtful administration would do us all a power of good.
	I agree with the basic spirit of my noble friend's amendment, but I am sorry to say that I cannot support it. As drafted, it confines the deregulating powers to dealing with EU legislation only; whereas if we can agree an acceptable mechanism subject to proper parliamentary control, it should apply to UK regulation as well. Furthermore, I do not think that an order-making provision of this kind would ever be used by the current bunch of Ministers. Can you image our Prime Minister going into the European Union Council with 10 draft orders under his arm, warning the assembled heads of government that unless they stop trying to control our immigration policy, he will lay an order legalising the use of pounds and ounces in Sunderland market? He would make no such orders. When he goes to the Council, he is too busy making concessions.
	Despite my sympathy with my noble friend, therefore, any change in our workings within the EU and its legislative powers should follow specific parliamentary debate on primary legislation. In conclusion, however, I ask the Minister not to brush aside the issues underlying an important amendment. I ask him to tell the Committee frankly whether he is satisfied with the current weight of EU regulation and our capacity to deal with and scrutinise it, and, if he is not, what he is going to do about it for us. As part of that, will the Minister tell us how many EU regulations he has managed to have repealed in the past six months? His officials will no doubt be able to supply that information before the end of the debate. I have asked for information on only six months, as it is those triumphs that will no doubt be uppermost in the Minister's mind as he rises to speak.

Lord Bassam of Brighton: The amendment of the noble Lord, Lord Tebbit, is certainly "sporting"; there is no doubt about that. It has probably led to a bit of grief on the Front Bench opposite, because there is clearly a sharp difference of opinion. The 1972 Act was enacted not by a Labour Government but by a Conservative Government. I am always pleased to see that the noble Lord, Lord Tebbit, has not changed in his general scepticism of all things European. It is refreshing to have a distinct view expressed in this Committee, and the noble Lord does it very well indeed.
	I have been invited to comment on the amendment of the noble Lord, Lord Waddington. Unless the noble Lord is not going to move it, I think that we should save that debate until later. But there is not much to choose between the comments and propositions of the noble Lords, Lord Waddington and Lord Tebbit. They might be acting in concert, and that is fair enough.
	The noble Lord, Lord Waddington, made one point to which I wanted to respond. He reflected on my comments at Second Reading and in the debate on European regulation inspired a while ago by the noble Lord, Lord Grenfell. We are proud of our role in encouraging a deregulatory approach by the EU. The EU is perhaps in some respects a bit behind the UK in attempting to deregulate. That is not the case for all EU states. Some are perhaps a bit more advanced, but most are behind us. They are now recognising that we have a robust approach. I reject the allegation that we gold-plate EU regulations because that is not our intention at all.
	The power to remove or reduce burdens should certainly be used to remove gold-plating, and the Davidson review is currently considering evidence about gold-plating. That review will report later this year, and, if appropriate, the Government will use powers in this and other legislation to ensure that we do not gold-plate, because that is not what we want to achieve.
	As to the amendment tabled by the noble Lord, Lord Tebbit, I wonder whether he really wishes to limit the order-making power in Clause 1 to remove and reduce only those burdens resulting from legislation made under the powers granted by the European Communities Act 1972. I think that he ultimately does not wish to do that, because he spoke with eloquence earlier on the need to restrain regulatory activity by governments—not only this Government but all governments. We argue that it is more sensible to remove or reduce by order burdens resulting from any legislation and regardless of whether they originate from the European Community. As this amendment would impose an unnecessary restriction on the order-making power in Clause 1, I urge noble Lords, whether they be Front-Bench Conservative Peers or not, to reject it.
	It is worth reminding ourselves of the value of Section 2(2) of the European Communities Act. It makes provision for a Minister or a department to implement European Community obligations into domestic law by regulation. I know that noble Lords do not always agree with them, but there are many benefits in adopting rules set at European level. For example, the legislation underpinning the common customs union means that the UK can import from and export to all other EU members without having to face 24 different sets of rules and duties. That seems an entirely sensible approach. EU legislation which we transposed into UK legislation opened the national telecommunications market to competition in 1998. Breaking those national monopolies helped to bring down the cost of calls by 40 per cent to 50 per cent. Although I could quote many other examples of the valuable transposition of EU regulatory regimes into UK law, and there might be some benefit in doing so, those two examples alone are sufficiently important.
	The noble Baroness asked me to give a figure for the number of EU regulations scrapped in the past six months. I do not have that information to hand and suspect that she did not expect me to. Perhaps I should have had it. But I am happy to write to her and to share the fruits of the correspondence with other noble Lords who have contributed to our debate.

Lord Waddington: If I understood my noble friend correctly, she asked how many regulations that had come into force had been scrapped, not how many being generated will be aborted or how many will be revised. I think that I can give the Minister the answer now so that he can save himself a lot of trouble. Not a single one has been scrapped.

Lord Bassam of Brighton: I am grateful to the noble Lord for that clarification of what noble Lords opposite are after. I commit myself to sharing with the Committee what information we have. But the noble Lord has missed an important point: our intervention at an early stage can prevent a lot of the unnecessary adoption of regulations and can make those who are seeking a regulation think long and hard about what they are achieving. We want open markets—that is what the single European market is about—and the benefits of European trade, and if practical measures can be taken to head off an ill considered proposal that might find its way into our legislation, that seems entirely sensible because we will have negated the need to go through another costly, time-consuming and unnecessary process. I heard what the noble Lord said about that in slightly derogatory terms, but when he reflects further on it he may think that it demonstrates a degree of diligence by the Government in paying close attention to those things. If we did not, he would be equally critical. I hope that the noble Lord, Lord Tebbit, will feel able to withdraw his amendment this afternoon, inviting though it might be to some of your Lordships.

Lord Tebbit: I am most grateful to the Minister and to other noble Lords who have spoken. Let me say first of all to the noble Lord, Lord Desai, that I think that he misunderstood me. If he did so, that must surely be my fault rather than his because I never find that he misunderstands anything which is clearly set out.
	The 1972 Act gives huge powers, but only to do that which Brussels demands. It does not give huge powers for this Parliament to conceive something which should be done, and to do it without reference to our partners or, as we sometimes think of them, our masters in Brussels. As my noble friend Lord Waddington said, my amendment really would need the new clause he proposes in his Amendment No. 30, which we will discuss later this afternoon, to be effective and to make it work. As I said when I introduced the amendment, of course it will require many substantial consequential amendments. I confess that I did not think that perhaps it was a wise use of my time to spend too much energy on those consequential amendments at this stage.
	As my noble friend on the Front Bench said, this amendment would confine the Bill solely to what I would broadly call Brussels legislation. The advantage of that is that it would enable this Bill to pass through quickly without any undue controversy and limited in what it is set out to do. Then we could settle down with a little more leisure to think what we should be doing on all those other regulations. I think that a common consent is beginning to emerge that it might be much better to amend the 2001 Act, which would be less troublesome and controversial than this Bill—and, as Members of the Committee know, nothing upsets me more than controversy.
	The noble Lord, Lord Bassam, said that, if I had my way, we would find ourselves facing the problem of having to deal with 24 sets of import regulations if we did not abide by what Brussels said. That is not so. By definition, it would be only 23, and unless the other 23 powers left the European Union they would all have one identical set of regulations. I say that in passing.
	I detect that if I put this to a Division this afternoon I might not get a majority. On the other hand, this Chamber is famed for its sober consideration and thought, and perhaps after sober consideration and thought if I were to bring this back on Report people would see what an absolutely splendid amendment it was. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 7:
	Page 1, line 8, at end insert-
	"( ) No order shall be made under this section which would impose upon any person a burden to which he was not previously subject."

Lord Kingsland: I introduce the amendment on behalf of my noble friend Lady Wilcox and, in the sporting spirit in which the previous debate took place, it is at this stage a probing amendment.
	The amendment seeks to add a phrase to Clause 1(2). That states:
	"That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation".
	Our amendment seeks to add the following expression:
	"No order shall be made under this section which would impose upon any person a burden to which he was not previously subject".
	I would add only that Clause 1(2) should be read in the context of Clause 4(2)(c), which is one of the four conditions the Minister is obliged to meet before he makes an order under Clause 1(1). Paragraph (c) reads that,
	"the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it".
	The obligation on the Minister is twofold. He can either reduce a burden, pure and simple, or a net burden; that is, he can produce a kaleidoscope of additions or subtractions of burdens provided, in his opinion, the net result is a reduction in regulation. That is clear from Clause 4(2)(c). The consideration is whether, taken as a whole, the proposed order strikes a fair balance between the public interest and the interest of any person adversely affected by it. So in effect, under the Bill, some people can have the burden on them increased. That is acceptable so long as the net burden falls.
	It is perfectly legitimate for Members of the Committee to ask, "Who are these people who will have additional burdens imposed on them as a result of a decision under Clause 1(1)?", and, "In what circumstances will those additional burdens be imposed?". My amendment suggests that, whatever the merits of adding to the burdens someone already bears, it should be impossible under the Bill to place a burden on someone who has never had a burden placed on them before. I should be most grateful if the Minister would clarify what seems to be a substantial phase of uncertainty in legislative drafting. I beg to move.

Lord Desai: Since there is no such thing as a free lunch, it is always possible that you can satisfy the condition that the net burden will be reduced, but you can never satisfy that the gross burden will always be negative for everybody for whom you legislate. If this condition were to be put, it would make all regulatory orders impossible. I take it that it is a probing amendment, but in proposing it the noble Lord has answered his own question—obviously common sense tells us that in legislation like this what we mean is that a net burden will be reduced, not a gross burden. Reducing a burden on someone can be interpreted by the person on the other side as increasing his burden. That could be easily argued. What we are saying is that, at the end of the day, some burden will be increased. For example, if I put in a regulation about banning smoking in some place, or for something like a pub opening, somebody will say that this is increasing my burden, but for the community as a whole the burden will be reduced.
	This is a nice amendment—a good probing amendment—but surely common sense tells us that it should never be in a Bill.

Lord Bassam of Brighton: We had some of this debate and discussion on an earlier amendment. I take the point that this is a probing amendment. What I think I said then was that there might be instances where burdens were greater on the regulator than on the regulated, and that given there is a risk-based system, those of a higher risk might well have a greater regulatory burden imposed on them than the lighter risk regulated sector, which would have rather less onerous burdens placed on it because it was of a lower risk. In essence, that is how burdens might be shifted as a consequence. If we had the inflexibility in the legislation which the noble Lord suggests through his amendment, that could have a serious impact on the Bill.
	Amendment No. 7 would make orders under Clause 1 very similar to those under the Deregulation and Contracting Out Act 1994, with which I am sure the noble Lord is very familiar. They did not allow the imposition of new burdens. That led to a significant limitation of the reforms that could be delivered under that Act. Orders under the 2001 Act could, and did, impose new—but, we would argue—proportionate burdens. The amendment would constrain flexibility. It would not enable us to shift regulatory burdens where it was sensible, possible and proportionate to do so. It could end up by providing us with a legislative straitjacket.
	To make the problem a bit more real, I give the example of a business that is currently inspected five times a year for its compliance with a regulation. The amendment would prevent an order removing that requirement and replacing it with a requirement for the business to carry out self-assessment once a year, which is of course a lower and lighter order of regulation, as that would be a burden to which the business was not previously subject.
	For those reasons, in practical terms, Amendment No. 7 is very damaging to the Bill. It would prevent us achieving what I think there is a common consensus that we need to achieve: to have the burden of regulation placed where it is most needed in a proportionate way to enable us to have a lighter regime of regulation in those sectors of business activity, charitable endeavour, and so on. I hope that the noble Lord will feel able to withdraw the amendment.

Lord Kingsland: I am most grateful to the Minister. I submit that his example is not a good one. It is plain that the firm in question already has the burden of responding to the demands of the external regulator. Simply shifting the time that it takes the firm to respond to external demands by requiring it to self-assess may not reduce the burden at all; it may be a net increase on the individual firm. The fact that it must do it itself is no comfort if it takes more time to regulate itself than for an outsider to regulate it.
	What concerns me, and what lies behind the amendment, is that under the order-making powers here, a Minister can identify an individual who carried no responsibility for a particular activity before—and therefore carried no burden with respect to it—draw them in and land them with responsibilities that he or she never had before. That is wholly inappropriate to an order-making power of this sort.
	I wanted the Minister to say that, of course, there would be no circumstances in which such a burden could be imposed on such a person. From the expression on his face, I suspect that he is not prepared to give me that undertaking.

Lord Bassam of Brighton: I would be reluctant to give an undertaking in the terms that the noble Lord describes. His point is fair: that where there is no regulatory burden, there must be very careful consideration of the imposition of new burdens on that person, that business, that enterprise, that entity. Of course that is the case. Our whole key regulatory drive, not just in the Bill but outside it, is directed to ensure that that is the case. But the noble Lord and the noble Baroness, Lady Wilcox, accepted in an earlier debate the point that there may well be occasions where burdens shift and that that is right because it is proportionate, correct and appropriate in the circumstances.
	I therefore cannot give an assurance in the absolute terms which the noble Lord seeks. I would be foolish as a Minister to give that absolute assurance. He needs to think very carefully about the nature of that assurance and what it might imply for future regulatory regimes. They cannot work in that way; we need that flexibility. I certainly understand his point; it is one on which we reflect at all times, and will certainly reflect on it having heard what he has had to say this afternoon.

Lord Kingsland: I am most grateful for the Minister's response. He generously admitted the fact that he is unable to meet our criticism. We will go away to reflect on what he has said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Wilcox: moved Amendment No. 8:
	Page 1, line 10, at end insert "or significant quantifiable cost in time"

Baroness Wilcox: The amendment is fairly self-explanatory, so I shall not waste too much of the Committee's time. In fact, it is to deal with time. I think that we would all agree that the time wasted on bureaucracy and form-filling in the public and private sectors has got worse every year and is becoming a greater and greater burden. The question is whether the Minister can explain what mechanisms he has in place to measure burdens that are costly in time but not in money. That may be an unusual question, but we felt that it was worth asking. In the voluntary sector, for example, a burden that requires endless bureaucracy and form-filling will not necessarily cost people money, because they are not being paid to do it, but there is a burden. I beg to move.

Lord Bassam of Brighton: The noble Baroness asks a simple enough question, but, as with all these things, the question raises many others. First, there is the issue of defining burdens. Clause 1 does that by setting out whether they are financial, administrative, an obstacle to efficiency, productivity or profitability, or a sanction, including criminal sanctions. The definition of "burden" is broader than that in the 2001 Act. That is why we decided to amend the 2001 Act. We have managed to achieve things under the 2001 Act, but we want to do more. In that Act, there was a power to reduce or remove a burden defined as a sanction, criminal or otherwise, where it was an integral and appropriate part of reducing the burden on the regulated.
	A good example of that was the Regulatory Reform (Fire Safety) Order, which simplified and rationalised existing fire safety legislation spread over 50 pieces of legislation. By reducing burdens on business in that instance, we saved time that was wasted by the multiplicity of overlapping fire safety regimes that had to be satisfied and the overlap of responsibility for enforcement. There was not just the fire authority and the fire service, but the local authority, together with building control officers, and so on. They all seemed to be working on the same problem.
	Through this process, we are attempting to achieve a greater coherence and simplification of the process and how it impacts on people. Amendment No. 8 is intended to add to the definition of burdens. Subsection 1(3)(a) provides that burdens which can be removed or reduced by order include financial costs. Amendment No. 8 adds,
	"significant quantifiable cost in time",
	to that limb of the definition of burdens. I argue that the amendment is unnecessary. The definition of burdens already includes opportunity costs—in other words, the time a business spends complying with a regulation when it could usefully be doing something else. This would count as an obstacle to productivity, which Clause 1(3)(c) already provides for, and is a burden for the purposes of the Bill.
	Clause 1(3)(c) covers the loss of a financial benefit due to the time spent complying with a regulation. The definition of burden as an administrative inconvenience would also permit the removal or reduction of burdens resulting from legislation that do not actually impose financial costs but do impose administrative burdens, many of which are hard to quantify. This is particularly true of the time that they take, because one cannot be absolutely precise about the nature or the amount of time that an administrative act will take.
	We sympathise with the spirit of the noble Baroness's amendment, but we believe it to be unnecessary because in essence it is taken account of in the legislation. The issue is very much at the core of the debate about burdens and regulation, so I congratulate the noble Baroness on tabling the amendment.

Viscount Goschen: I ask the Minister not to dwell each time on fire safety legislation. He will recall that when we considered the 2001 Bill, as it was then, almost the only example that the Government could come up with at every opportunity was fire safety legislation. It would be a great shame to draw a very broad-reaching power that could amend any Act on the statute book just to get at the fire safety legislation. I am sure that it would assist the House if, during our consideration of the Bill, the Minister could ponder with his officials other areas that may be affected.

Lord Bassam of Brighton: The noble Viscount deserves a response. I think that he makes a fair point. The example just happens to be one of the successes under the last legislation. Much of what has been said about what the Government intend the Bill's impact to be is well wide of the mark, but that is a practical description of something done under deregulation which those who are most affected by fire regulations—pretty well all businesses—probably very much welcome. That is why it is one of our top three examples of excellence under previous legislation, and probably why we have quoted it. I shall ask my officials in friendly terms to come up with other examples.

The Earl of Onslow: The answer is surely that the amendment is unnecessary because what it proposes is already included in,
	"an administrative inconvenience ... or ... an obstacle to efficiency, productivity or profitability".
	That is all that the Minister needed to say in reply to the amendment. We could have got on much quicker if he had simply produced the right answer, with which I happen to agree, rather than go waffling on about an awful lot else. I am simply being of assistance to Her Majesty's present advisers in how to proceed with vigour and intellect.

Lord Bassam of Brighton: I shall advise the Bill team to add the noble Earl, Lord Onslow, to its advisory panel.

Baroness Wilcox: In this instance, I thank the Minister for his gracious reply and turn to my noble friend behind me and say, "Don't be so horrid!" Obviously we are all trying to move towards the same thing. I tabled the amendment because of pressure from parts of the voluntary sector, who feel that there are areas in which they have to comply. It takes an enormous amount of time to do so, and they have no money with which to pay people to do it. They seem to see that as a particular burden that they would like to be recognised. I shall read carefully what the Minister has said and see whether I need to come back with this. In the mean time, I thank him for his gracious answer to my question. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howard of Rising: moved Amendment No. 9:
	Page 1, line 11, leave out paragraph (b).

Lord Howard of Rising: I understand that Amendment No. 9 has been grouped with Amendment No. 10 in the name of my noble friend Lord Peyton of Yeovil.
	Paragraph (b) cites as a potential burden an administrative inconvenience arising out of legislation. As I commented at Second Reading, I cannot think of any legislation that is not administratively inconvenient. On that basis, there is no legislation about which the Minister could not make an order unless it is specifically excluded in the Bill. In effect, the Minister will be given virtual carte blanche to bypass Parliament for whatever takes his fancy. That is too wide a power. We are likely to return to this argument in debates on the Bill.
	Later amendments on the constitutional safeguards that need to be built into the Bill may allay concerns over the breadth of the clause, although frankly I doubt whether it is possible to draft a Bill that is both effective and has adequate safeguards. You cannot escape from the fact that what enables a Minister to bypass Parliament to deal with bad legislation also permits him to bypass Parliament for good legislation. As safeguards are quite rightly introduced, so the ability to take decisive action is reduced or whittled away entirely. While we discuss Clause 1, perhaps the Minister can give some examples of an administrative inconvenience. Perhaps, in deference to my noble friend, he could exclude fire regulations when he does so.
	I could think of any number of administrative inconveniences that it would be thoroughly inappropriate to remove. Would not an administrative inconvenience fall under paragraph (c) as "an obstacle to efficiency"? An administrative inconvenience can amount to anything whatever, in effect giving the Minister a blank cheque when he decides whether to use his order-making powers. I beg to move.

Lord Elton: I draw to the Committee's attention the fact that, if the amendment were to be agreed to, I should not be able to call Amendment No. 10 in the name of the noble Lord, Lord Peyton of Yeovil.

Lord Peyton of Yeovil: I want to know when an inconvenience becomes administrative and when it does not. I would be most grateful if the Minister would be so kind as to give me some examples of an inconvenience that is free of the "administrative" adjective. Indeed, I would be enlightened, because I really do not understand what is meant at the moment. I hope that he will be able to do so. My noble friend on the Front Bench has of course covered the point much more broadly and thoroughly than I have.

Viscount Goschen: I quite agree with my noble friend Lord Howard that to make the burden relate to "an administrative inconvenience" is the lowest possible hurdle that one can imagine, but then that fits in with the rest of subsection (3), which includes "a financial cost". To buy a cup of coffee in the Bishops' Bar incurs a financial cost. Almost all legislation ever considered would impose a financial cost, and indeed would be an obstacle to efficiency, productivity or profitability. Therefore, I suggest that the whole subsection is otiose. There is no hurdle, and it must come down to the safeguards that we must impose later in the Bill.

The Earl of Onslow: I shall speak extraordinarily briefly to the amendments. In doing so, I refer back to the first amendment, because if, in using the word "considers", we relax the measure a little, as the noble Lord, Lord Goodhart, says, the clause would then read something like, "if the Minister considers the burden to be an administrative inconvenience". That starts to become a remarkably lax control. As the Minister knows, because I have said it before—and I will say again and again, as it has to go on being said—we should not trust Ministers with more power than we have to. They might act on something that they consider to be an administrative burden and consequently repeal primary legislation. The Minister may frown and say, "That is not what we intend to do". Whenever I came back from school and my report was appalling, I used to say to my mother, "I meant not to do that". She used to say to me, "The road to hell is paved with good intentions". We all know that it is paved with good intentions.
	If the Bill gives someone the power to do something, as night follows day that power will be used. We have only to look at the powers being used under other legislation—for example, the arrest of a poor, wretched man at the Labour Party conference, or the police using the evidence of newspaper articles on charges under the SOCP Act. If we had thought that these things were possible, we would have made a much bigger row in Parliament. I do not trust Ministers. This is too broad. It is another aspect of legislation of such breadth being allowed to go through without jot or tittle. I hope that the Minister can come up with an answer that will assuage my doubts, but I doubt it.

Lord Norton of Louth: I reinforce what my noble friend has just said. My noble friend on the Front Bench, Lord Howard, invited the Minister to give examples of administrative inconvenience. I suspect that the Minister will be able to come up with petty examples that we would all be delighted to get rid of, but that is not the real problem. The real problem is that the scope or the potential is enormous. I agree with my noble friend Lord Goschen about the whole of subsection (3), but this paragraph is the broadest. It is the Trojan horse through which one could achieve a great deal if one was so minded. The Minister earlier referred to the Government's intent in the Bill, but that is not the real issue. The important issue is what future Governments could do with this Bill. Therefore, I invite the Minister, rather than answering my noble friend in identifying examples, to address the potential scope that this subsection gives rise to.

Lord Bassam of Brighton: First, I invite the noble Lord, Lord Norton of Louth, to consider this. It is obviously a very beguiling thought that one could always future-proof any legislation. This is a general invitation to the noble Lord, which is not specific to this Bill. But I would like him to provide examples of how that would work and how it might be possible. If it could be done in a way that worked well, I am sure that it would give great comfort to everyone on the longer-term intentions of any Administration, not just the current one. I am sure that I can remember making arguments when my party was in opposition not about what existed there and then, but about something that we were suspicious of in the future. The trouble is that, by and large, it is not possible to future-proof legislation in order to prevent things that future Governments might want to make happen when there is a change of Administration. There is a difficulty and the noble Lord knows that, although it is part of the current debate, in which I am interested for those reasons.

Lord Norton of Louth: For the noble Lord's benefit, I can think of an example relating to the potential to which an Act could be used—the Parliament Act. That Act was not ring-fenced. On this Bill, there will be amendments precisely defined to ring-fence and limit it, so that it will deliver the Government's intention and prevent future Governments from encroaching into those areas into which the Minister says the Bill is not intended to encroach.

Lord Bassam of Brighton: That will be an interesting debate, which I am looking forward to. I want to deal with the amendments on administrative inconveniences, which form part of the definition of burdens. Amendment No. 9 would remove "administrative inconvenience" from the definition of what may be removed or reduced by order. Amendment No. 10 removes the qualifier "administrative", so that any type of inconvenience could be removed by order.
	I shall explain what "administrative inconvenience" would not cover, which, in a sense, is where the noble Lord, Lord Norton, is coming from. Some have argued that a Minister could have asserted that it was administratively inconvenient for the Government to have to provide free healthcare. Clearly, we do not see it that way. Clause 1(4) provides that burdens affecting only Ministers or government departments can be removed or reduced by order only if they affect the Minister or department in the exercise of a regulatory function. Providing free healthcare is not a regulatory function, so orders under Clause 1 could not be used to remove the Government's duty to provide free healthcare. Therefore, the allegation made against this as a coach-and-horses approach to legislation does not stand. However, "administrative inconvenience" could include time spent by individuals filling in forms to comply with regulations, which does not go so far as to impose a financial cost on them, and could not be said to be—

The Earl of Onslow: The Minister has just said that "administrative inconvenience" could be filling in forms. Surely we do not need an Act of Parliament to stop people filling in a form. Someone in an office says, "Change the form". You do not have to be a genius to do that. Just do not send them out, change them or make them smaller.

Lord Bassam of Brighton: We might need a different approach in legislation to ensure that the form-filling burden that an Act or legislation imposes is no longer there. I gave an example earlier about form 42, I think it was. I do not think that the noble Earl was in the Chamber at the time, but I would ask him to read Hansard, which might help for further elucidation.
	Clearly, we do not want a situation where financial costs are placed on individuals and businesses. We do not want to set those things up in such a way as to be an obstacle to the individual's efficiency, productivity or profitability, let alone a sanction. Removing "administrative inconvenience" from Clause 1(3) would thus remove the ability for orders to remove or reduce administrative inconvenience that does not impose an actual financial cost. The Government believe that unnecessary burdens should be removed wherever they fall, whether on the public, private or third—the voluntary—sectors or on individuals.
	Amendment No. 10 would remove the qualifier "administrative" from the types of inconveniences that could be removed by order. I believe that "administrative inconvenience" properly captures the kind of inconveniences that orders should be able to remove—for instance, having to complete, as the noble Earl was alarmed about, a form. It is right that this power is limited to administrative inconvenience and does not capture legislation that a Minister might consider is, say, politicallyinconvenient. If the law is found inconvenient, other than because of the administrative bother that it creates, changes should not be made by order.
	The order-making process will not be a fast-track way to change the principles behind legislation, but it will be a way to deliver better regulation more quickly and effectively. The term "administrative inconvenience" is part of the definition of burdens that allows orders under Clause 1 to deliver better regulation and prevents orders from delivering proposals that do not bring better regulation benefits. For those reasons, we oppose these amendments.
	For further clarification on forms for the noble Earl, Lord Onslow, the forms might relate to licences, or to compliance with requirements to provide particular regulators with information or to make arrangements for inspectors to visit premises. That is what this Bill is about. It is not about the big constitutional issues that people have seen it as opening up and attacking. It properly deals with improving and lightening the burden of administration and making sure that we genuinely attack administrative issues and inconveniences.
	I am told that an administrative burdens project has identified these costs and will be establishing targets to reduce them. That is something that we should concentrate on because it will be of benefit to businesses, particularly those in the smaller business sector who feel weighed down by red tape, form-filling and pettifogging bureaucracy.

Viscount Goschen: Even if one accepts the Minister's argument about administrative inconvenience and that this Bill does not set out to cover wider constitutional areas—and I do not accept his argument—can he give examples of any legislation that would not be caught by paragraphs (a), (b), (c) or (d) of subsection (3)? I am referring to legislation that does not impose,
	"a financial cost ... an administrative inconvenience ... an obstacle to efficiency ... or ... a sanction",
	of some sort on someone. Unless the Minister can inform me otherwise, I suggest that there is no legislation that would not be caught by one of those.

Lord Bassam of Brighton: I am not going to trade examples now. I shall provide a schedule of things that would satisfy the noble Viscount and copy it to all noble Lords who have entered into this debate.

Lord Peyton of Yeovil: In my anxiety to understand what is really quite a trifling point, I shall certainly read with great care what the noble Lord has said in the hope that it might bring light into the darkness.

Lord Norton of Louth: At what point does an administrative inconvenience cease to be so in terms of scope? The noble Lord has implied that these will be minor matters, but nothing here constrains the provision in that way. An awful lot of major things could also be administratively inconvenient. How is this to be ring-fenced for the intention that the noble Lord has suggested it is designed for?

Lord Bassam of Brighton: The matter would have to satisfy that limb of the definition. As I described earlier, when bringing forward orders to reduce the burden of regulation, the Minister will have to set out for the benefit of the committees looking at these issues how they are to work. A practical example of the way in which the administrative burden will be reduced will be provided for the committees looking at the orders.

Lord Howard of Rising: I thank the Minister and all noble Lords who have spoken so well to this amendment. It has been flattering to have such distinguished support. I think that all noble Lords agree that burdensome regulations need to be got rid of. The Minister has said that we cannot prevent the future irresponsible use of what is set out in this Bill, but surely it is the responsibility of those in Parliament to try to prevent the introduction of legislation that might be abused at some later stage.

Lord Bassam of Brighton: Of course that is the case and it is why we have substantially amended the Bill so that its real intention cannot be misunderstood. In a sense it covers the boring, the mundane and the tedious that get in the way of the primacy of effective and efficient business. That has always been our intention and we do not want there to be any confusion about it.

Lord Howard of Rising: I accept that. The Minister says that it is not about the big issues, but about removing burdens. However, the Committee should look at what the Bill says, not at what the Minister tells us is his interpretation of what it says. I personally do not share his rather charming faith that future generations will not try to abuse legislation that is capable of being abused. That having been said, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 10 not moved.]

Baroness Wilcox: moved Amendment No. 11:
	Page 1, line 11, at end insert-
	"( ) a health and safety regulation disproportionate to identifiable risk;"

Baroness Wilcox: I have tabled this amendment because I cannot find the word "risk" in the Bill. In the review published by Philip Hampton in March 2005, the concept of risk assessment as the basis for regulatory intervention was expounded at length. I cite Recommendation 1 of the review:
	"The review recommends that all regulatory activity should be on the basis of a clear, comprehensive risk assessment".
	It goes on to state:
	"The risk assessment should be balanced in including past performance and potential future risk".
	No doubt we will discuss how the Hampton review has been incorporated into the regulatory principles set out in Part 2, but I wonder why the concepts of proportionality and risk do not apply to the meaning of "burden" in this clause.
	All we hear about the concept of proportionality in Clause 4 is that the effect of any provision in Clause 1 has to be "proportionate to the policy objective". But no mention is made of regulations having to be proportionate to risk or, indeed, that a Clause 1 order should focus on burdens that are disproportionate to risk, even though risk is set up by Philip Hampton as the measure against which regulatory activity should be compared. To measure a particular Clause 1 order against a policy objective is not the same as measuring a particular order against an objective standard of risk and the need to ensure that regulations are proportionate to the risk involved in not intervening.
	I accept that the Minister has powers to promote regulatory principles under the powers proposed in Clause 2(3), which states:
	"Those principles are that—
	(a) regulatory activities should be carried out in a way which is ... proportionate".
	Why is the concept of proportionality not expressly couched in the language of risk, which is such an important recommendation in the Hampton review? I beg to move.

The Earl of Onslow: This is very important because we are inundated with reports in the newspapers along the lines of one I saw the other day which gave me total joy. It stated that one police force would not pursue an armed robber running away on a motor bicycle while not wearing a hard hat in case he fell off and sued the force for damages. I may have it wrong and it may be only an urban rumour—

Noble Lords: It is true.

The Earl of Onslow: If that is so, while I do not expect Ministers, even of this Administration, to behave in such a crass fashion, we must somehow bring back into balance what my noble friend on the Front Bench has pointed out: the difference, in effect, between risk and hazard. There is a risk that a meteor will strike this building, but it is a risk one should take no account of because there is nothing we can do about it and the chances of it happening are incredibly remote. There is also a risk that I will be run over when crossing the road—almost certainly because I would not have been looking where I was going while my mind was elsewhere. However, we take measures to try to protect me and millions of other people from being idiotic when crossing the road—we separate motor cars from pedestrians. There is a difference between a risk and a hazard.
	I have a great deal of sympathy with the Government on this because it is not always them doing it; someone else may be doing it in their name. But we ought to be able to put into any regulations we introduce a provision which reflects the point so well made by my noble friend Lady Wilcox.

Lord Goodhart: This seems to be a desirable amendment and one which might well have useful consequences.

Lord Borrie: The noble Baroness, Lady Wilcox, made a very helpful point in reminding us of Hampton and the importance of risk in assessing and justifying regulations, particularly health and safety regulations. But I think she half-recognised that, in imposing certain pre-conditions, Clause 4 refers to one which is surely very vital: that the provision is proportionate to the policy objective. That seems very much to cover risk. There is another pre-condition in Clause 4: that the provision does not remove any necessary protection. That is obviously very relevant to health and safety regulations. So I do not think Amendment No. 11 is needed because its provisions are covered by the Bill already.

Lord Goodhart: Before the noble Lord sits down, I should point out to him that the amendment we are concerned with relates to the proportionality of the existing law, whereas Clause 4(2)(b) refers to the proportionality of the proposed new legislation. So the two actually relate to different things.

Lord Borrie: I agree with the noble Lord's precise point, but I think it very unlikely that the interpretation of the word "burden" would be otherwise than proportionate. Surely that is not intended. I doubt the need for the amendment.

Lord Peyton of Yeovil: The episode outside the Palace of Westminster in Parliament Square seems quite relevant to this. There is a regulation—I believe it is a health and safety regulation—which states that policemen must not climb higher than six feet. The other day a van arrived to assist in the removal by the Metropolitan Police, after some delay, of the gentleman who had been living there for quite a long time. A couple of protestors climbed on to the police vehicle, which was eight feet high. So the whole operation had to be suspended for two hours or so while a special mountain section of the police was summoned to remove the two individuals who were reclining—immune from interference—on this eight-foot high vehicle. That is quite a good example of the sort of regulation which should be removed.
	On the other hand, I can quite see that immediately anyone tried to remove that regulation—if any Minister dared to do so—all the forces of darkness would be summoned up to defend it. They would say, of course, that any time now a policeman will fall off an eight-foot high vehicle and if we change this regulation we will have bricks flying all over us. I think my noble friend's amendment is extremely sensible.

Lord Pearson of Rannoch: Perhaps I may help the noble Lord, Lord Peyton. It is not the forces of darkness that would be unleashed on Her Majesty's Government. I know that my noble friend is an ardent admirer of the European Union and all things European, but it is, in fact, the working at heights directive which would be unleashed on the Government. My noble friend may not know that this makes it illegal to climb a ladder, unless one has someone else holding the bottom of it, for more than two metres—I am afraid that is the expression rather than "six feet". It is in the same category as what is loosely referred to as the toys directive, which makes it an offence nowadays to sell a rocking horse which bears a child more than two foot six—or whatever that is in metres—from the ground. So I am afraid the Government are fighting a bigger animal than anything we may decide in this Chamber.

Viscount Goschen: During this short debate I felt a moment of sympathy for the noble Lord, Lord Bassam, in having to deal with toys, asteroids, motor-cycles and ladders—and this is only the warm-up session for the Bill.
	The reason this debate is so wide and so unstructured—and will continue to be so throughout the passage of the Bill—is that the Bill is drawn to affect every single piece of legislation on the statute book. Therefore, I suspect, the noble Lord will have to come to the Dispatch Box with a very deep briefing folder in order to deal with all the examples that will be thrown at him.
	On a serious point, this re-emphasises the ridiculous breadth of the Bill. We will seek to narrow it at every possible opportunity.

Lord Bassam of Brighton: I knew that there would be a Euro-sceptic explanation of why the amendment was necessary and required. I am very grateful to noble Lords who have examples of what they consider to be daft regulations, and glitches to enforcement produced as a result, because we can add them to our list of things for which we might wish to consider a regulatory removal order. So it is extraordinarily helpful, even if I occasionally find it a touch irritating. But, of course, the debate is very important.

Lord Pearson of Rannoch: I hope the noble Lord will forgive me but, of course, Her Majesty's Government cannot do that without the unanimous consent of every member of the European Union. Therefore, when he says that he would like to add it to his list for the freedom of this party to act, it is under European legislation illegal—and the noble Lord should know that.

Lord Bassam of Brighton: That, of course, being the case, it could be down to interpretation.
	Anyway, to get to the point, Amendment No. 11 seeks to add the words "identifiable risk" into the definition of "burdens" in Clause 1. The noble Lord, Lord Borrie, has put his finger on why we do not need the amendment.
	The amendment is unnecessary. Health and safety regulations which are disproportionate to identifiable risk could be removed under the existing definition of "burdens" in Clause 1(3). The amendment alludes to a situation, for instance, where a business is inspected very frequently but that business has a good track record on health and safety and the evidence suggests that the level of inspections is disproportionate to the risk that the business poses. But this over-inspection, of course, imposes a financial cost and an administrative inconvenience on the business. It also imposes a cost on the regulators because they have to submit themselves to extra time and energy costs in enforcing the regulations unnecessarily. We contend that such situations are already covered by the definition of "burdens" in Clause 1(3). Amendment No. 11 is unnecessary because it will not add to the definitions of "burdens" which are already in the clause.
	I am heartened by some of the debate because it is clear that both sides of the Committee have in their sights the same sorts of problems and issues. If we continue in that vein, the noble Earl, Lord Onslow, and I will end up agreeing with each other rather more than we have ever agreed with each other in the past. Noble Lords will probably think that is a good thing.

Lord Peyton of Yeovil: I had hoped that the noble Lord might at least say whether the health and safety regulation which forced the police to abandon the clearance operation in Parliament Square would be one of which an ambitious, keen and enlightened Secretary of State might be willing to dispose. But he has not answered that.

Lord Bassam of Brighton: It might be exactly the sort of thing such a person might look at, but of course it is a question of interpretation.

The Earl of Onslow: I cannot let that nice, gentle, complimentary remark from the noble Lord, Lord Bassam, go unanswered. Of course I agree totally with him that regulation should be sensible and to the point. French circus regulations—of which I have some knowledge, for some extraordinary reason—allow tigers to be led round the ring in the Cirque d'Hiver in northern Paris by a lady clad in a tutu; the tiger is on one little spangled dog lead, and the only safety instructions are to ask the children in the front row to sit further back in their seats. Some continental countries seem to have a slightly different view of health and safety regulations than we do, so perhaps there is hope for my noble friend Lord Pearson yet.
	Of course I agree with the Minister that regulations should be sensible—all of us agree with that, as he has rightly said. However, I am worried, as I think several of my colleagues are, about giving too many powers to Ministers. My Whig blood revolts against that.

Baroness Wilcox: I have listened carefully to every contribution and got rather lost along the way. Letme go back to the point that the noble Lord, Lord Goodhart, whose support I was delighted to have, and I were making. If one goes to the trouble of letting Philip Hampton undertake this great review which is so well received by all, when he uses particular language and has a particular way of saying things, it seems wrong not to use the words that he is using. In addition, the public understand what is meant by "risk". They understand the concept of risk. I understand what is meant by the concepts of risk and proportionality.
	I listened carefully to the noble Lord, Lord Borrie, for whom I have the greatest respect. When he was the Director-General of Fair Trading, I was chairman of the National Consumer Council, and I learnt to make sure that I used the words he used, because I had far more chance of getting things past him if I did. I am asking the Minister to use the words of the Hampton review here. I cannot see why his advisers are taking him round in circles to avoid using it. It seems very strange.
	I will read what has been said, among all the other entertaining things which have been said here today. It is a very serious point. The concept of risk is very serious, certainly in health and safety legislation. I shall return to this on Report, by which time I hope the Minister will have spoken to his advisers, looked at the Hampton review recommendations and come back with wording on which we can all agree. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Peyton of Yeovil: moved Amendment No. 12:
	Page 1, line 13, leave out ", criminal or otherwise,"

Lord Peyton of Yeovil: I remind the Committee, particularly the Minister, that Clause 1(3)(d) refers to,
	"a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity".
	In the interest of economy of space—this is not a complicated point—it might be nice to leave out the words "or otherwise" and leave the provision referring to "a sanction".
	Can the Minister please explain, in words I can understand, what is added to the Bill by the inclusion of those two very simple words "or otherwise"? My contention is that the words "a sanction" have the same meaning, so "or otherwise" could safely be left out. This is one of the very few times in my life when I am really confident that the Minister cannot resist the argument to leave out these two words, but of course my life is one of perpetual disappointment in this context. I beg to move.

Lord Norton of Louth: I have three amendments in this group, so I should like to develop the case for them and, to some extent, reiterate what my noble friend Lord Peyton has said.
	In those amendments, I start with two propositions. First, the terms of the Bill should be as tightly drawn as possible. As we have already discussed, the potential for misuse by future Governments remains considerable. If it is to be used for removing non-contentious regulatory burdens, it needs to be clearly and firmly ring-fenced. That is the generic point I begin with.
	My second proposition is that one of the most powerful weapons in the armoury of Parliament is the ability to stipulate conditions under which the individual can be deprived of liberty. Parliament can stipulate what is and what is not an offence, and can provide that anyone convicted of an offence may lose their liberty for a stipulated period. Given the importance that we attach to the liberty of the individual, we must be circumspect in providing that anybody other than Parliament can prescribe specified offences carrying terms of imprisonment. If someone is to be deprived of their liberty, we need to be sure that Parliament has made the decision as to the offence and the penalty.
	If Parliament has previously made a decision as to an offence carrying a penalty that may entail going to jail, then it has to be assumed that it has done so in the full knowledge of the seriousness of what it has done. Similarly, if penalties carrying terms of imprisonment are to be introduced, they should be introduced by Parliament. In short, Parliament should be the body that determines the circumstances in which the individual may be deprived of their liberty. That may involve creating offences and it may involve repealing offences.
	As my noble friend has outlined, Clause 1 provides that the Minister may make an order to reduce a burden where that burden may comprise,
	"a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity".
	Clause 7 permits an order to be made creating a new offence that is punishable on indictment with a term not exceeding two years or on summary conviction with imprisonment for a term not exceeding the normal maximum term or a fine not exceeding level 5 on the standard scale.
	I appreciate that the noble Lord, Lord Bassam, will respond that such orders will be subject to parliamentary scrutiny under the Bill. However, I believe that offences carrying terms of imprisonment created by Parliament through primary legislation should normally be repealed by Parliament through primary legislation. As I read the Bill, Clause 1 permits an order to get rid of any criminal offence, whatever the penalty. Similarly, if a criminal offence is to be created, especially one which entails a term of imprisonment, it should be created through primary legislation.
	My amendments are designed to address the point, albeit in different ways. Amendment No. 13 follows the amendment of my noble friend Lord Peyton in removing the power to remove the criminal offence by an order under the Bill. This amendment takes my argument to its logical conclusion and reserves to Parliament the right to abolish a criminal offence through primary legislation. However, I appreciate that there is an argument that certain regulatory burdens may be created through offences that may entail fines or a short period of imprisonment. So I can see that there may be an arguable case for allowing for the removal of such offences by order. It is for the House to determine where to draw the line—removing such a power altogether or permitting it in limited circumstances.
	Under Amendment No. 15, primary legislation would be required to remove any offences carrying a penalty of imprisonment for more than two years. Since I tabled that amendment, the noble Lord, Lord Goodhart, has tabled Amendment No. 74, which seeks to achieve a similar result but in a more sophisticated and, I think, preferable manner. I will be happy to support that amendment.
	The argument I have deployed applies also but with more force to the power to create new offences. Again, if we take my argument to its logical conclusion and reserve to Parliament the right to create criminal offences through primary legislation, then Clause 7 should come out of the Bill. Alternatively, instead of removing it, one may seek to restrict further the powers it contains by deleting the capacity to create an indictable offence. That is the intention of Amendment No. 72.
	It is for Parliament to decide where to draw the line. I do not believe that removing, or at least limiting, the capacity to create or remove criminal offences creates insuperable problems in seeking to achieve better regulation. I know that the Minister will argue that it does, but if departments identify offences which should be removed or created and which cannot be because of these amendments, they could be included in an annual deregulation Bill as proposed by my noble friend Lord Goschen at Second Reading. Indeed, I would regard an annual deregulation Bill as a preferable alternative to this Bill, but if the Government persist with this measure, a regular deregulation Bill may complement it. That possibility provides the basis for ensuring that this Bill is as tightly drawn as possible. As we have discussed, it is too open-ended as it stands, not least in respect of matters that should be prescribed by Parliament through primary legislation.
	The Minister has argued that there needs to be some scope for removing a sanction. He developed the point in his letter—it is becoming his infamous letter—of 27 June. My response to that is, "Yes—up to a point". My amendments are designed to establish where that point lies.

Lord Jenkin of Roding: I, too, have an amendment in this group and perhaps I might say a few words about it. As a preliminary, I offer to the Committee the apologies of my noble friend Lady Carnegy of Lour, who had hoped to put her name to these amendments and to be in her place today. However, very wisely, given the temperature outside, she thought that it was better to stay at home and not try to travel; and so I offer her apologies.
	A number of the amendments to which my noble friend had wanted to add her name to mine were suggested to us by the Law Society of Scotland. They are points of substance. The first, Amendment No. 14, is very interesting because it proposes to take out the words,
	"for doing or not doing anything in the course of any activity",
	which could be as wide as anybody chose to make it, and insert instead,
	"for failure to observe a restriction or to comply with a requirement or condition".
	The interesting thing about the amendment is that what we are seeking to put back are the words from the Regulatory Reform Act 2001. The view has been put to me that those words from the 2001 Act made a much more focused provision, which is very clear and precise. That formulation would allow the removal of sanctions for failure to comply with a restriction, requirement or condition. It is argued that that would be a much more proportionate response to the need to remove burdens than is in the extremely wide words in the Bill. This is an example of the Government being so determined to produce a new Bill that they have produced a worse definition than was in the original Act. The words in the original Act seemed clearer and more specific, and therefore more limiting of the extent to which the Government could rely on subsection (d) for making an order. I simply cannot understand why the Government have abandoned the earlier wording for what I and, I know, a number of others regard as much inferior wording in the Bill. I therefore hope that the Government might be prepared to make a concession and agree that they got it right five years ago. Why do they need to change it now?

Lord Goodhart: Amendment No. 74, which stands in my name and that of my noble friend Lord Maclennan, is also in this group and is, as the noble Lord, Lord Norton of Louth, pointed out, to the same effect as his Amendment No. 15; that is, that it should not be in the power of an order made under this Bill to remove from the statute book serious offences without full debate and proper primary legislation.
	Amendment No. 74 also deals with removing a right to a jury trial. That is not an issue which belongs to this group of amendments. I hope that it will not be discussed with this group of amendments. It is my intention to return with a similar amendment that can be debated next week when we come back to this Bill.

Lord Bassam of Brighton: Is the noble Lord then degrouping as we speak?

Lord Goodhart: Amendment No. 74 would insert a new clause with three subsections. I am effectively degrouping subsection (3) from subsections (1) and (2) of our new clause. Subsections (1) and (2) are wholly on the same lines as Amendment No. 15 of the noble Lord, Lord Norton, and are a necessary part of this debate, whereas subsection (3)—I should probably never have grouped them together to begin with—raises an entirely different debate with which there will be an opportunity to deal next week. It is not a formal degrouping—I accept that that is not possible.
	I am unable to support Amendment No. 13 because, first, a power to create offences with a penalty of up to two years is already contained in the 2001 Act. A significant case would therefore have to be made for deleting it from the new Bill. Secondly, new offences will in practice need to be created by orders made under this Bill where they replace previous regulations which have contained criminal sanctions.
	It is clear that if relatively minor offences can be created under existing legislation or under this Bill, then it is appropriate to have an equivalent power to abolish them. However, offences carrying higher penalties should not be abolished without a full debate and full proceedings by primary legislation. For example, it would be wholly inappropriate to decriminalise drugs, if a future Government decided to do so, without primary legislation covering such a serious crime. The same principle applies where the offence is retained but the maximum penalty for it is reduced. I have nothing to add to what the noble Lord, Lord Norton, said, because I am entirely in agreement with the principle behind his Amendment No. 15.

Lord Borrie: Perhaps I may speak to the amendment of the noble Lord, Lord Peyton of Yeovil, and those of the noble Lord, Lord Norton of Louth. So far as the amendment of the noble Lord, Lord Peyton, is concerned, if the words "criminal or otherwise" were left out, the outcome would be exactly the same. I therefore agree with the noble Lord, Lord Peyton but there may be a case that the Minister might wish to use, which is that if you use the words "criminal or otherwise" in the Bill, for the sake of three extra words you provide greater clarity and remove any doubt that some people might have that it did not apply to both criminal and civil sanctions. So there may be a case for it in terms of clarity, but otherwise I agree with the noble Lord.
	As for the proposals of the noble Lord, Lord Norton, for the reasons enunciated by the noble Lord, Lord Goodhart, it would be a very bad thing to go with his Amendment No. 13. There are numerous types of defences, both of the more serious type to which the noble Lord, Lord Goodhart, referred and what are sometimes called statutory offences with modest fines imposed. There is a world of difference between them. But there is a great deal to be said for the more substantial point raised by the noble Lord, Lord Norton, under the other amendment, supported by the noble Lord, Lord Goodhart. I do not know whether the amendments are rightly worded, and I look forward to hearing the Minister's response as much as any other noble Lord.

Viscount Goschen: This Bill could be entitled the Reduction of Parliamentary Scrutiny Bill—and I for one do not think that in cases in which severe criminal sanctions could be imposed by statute that should be amended in any other way than by primary legislation. So I support my noble friend Lord Norton.

Lord Henley: Before I comment on the particular amendments, I remind the Minister about the rubric that appears at the top of the list of groupings for this Bill and for that matter any other Bill. He made a strange face when the noble Lord, Lord Goodhart, suggested that he might want to degroup his Amendment No. 74, or part of it. I remind the Minister that the rubric at the top of the list of groupings says:
	"Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List".
	That applies whether any noble Lord wishes to degroup amendments or not. I remind the Minister that the list of groupings is there for the convenience of the Committee and not of the Government or Ministers.
	The three amendments tabled by my noble friends and the fourth, tabled by the noble Lord, Lord Goodhart, have as their aim the limitation of the order-making powers to non-criminal sanctions only. I note that the Regulatory Reform Act 2001 includes criminal sanctions in the remit of regulatory reform orders. It describes a burden as,
	"any sanction (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition".
	But that does not mean that the appropriateness of including this type of sanction within the meaning of burden should not be revisited.
	In the debate on the 2001 Act, the inclusion of criminal sanctions within the meaning of the burden did not receive a great deal of attention in Committee. Perhaps it should have done, but I cannot remember the debates at the time. Its inclusion here has not been expressly highlighted by the Select Committee on the Constitution or the Delegated Powers and Regulatory Reform Committee—but they were examining the Bill with the precedent of the 2001 Act in mind.
	With three separate amendments in the names of three separate noble friends, I do not want to act as Paris in choosing between the three amendments but no doubt the Minister will adjudicate between those three and that part of the amendment in the name of the noble Lord, Lord Goodhart, to which he spoke. The Government have already accepted a limitation to the order-making power when dealing with the creation of new offences in Clause 7, which we will get to in due course. Subsection (1) of that clause says that an order cannot create a new offence with a penalty of more than two years' imprisonment or increase a penalty for an existing offence up to the same limit of two years. It therefore seems to accept that when creating or increasing offences those carrying a sentence of more than two years should be the preserve of primary legislation. If that is the case, then when it comes to reducing a burden—and if the same principle were to apply—offences that Parliament has already deemed to merit a two-year sentence or more should likewise be the preserve solely of primary legislation.
	What would be useful to set this debate in context would be if the Minister could set out how many new offences if any have been created or removed under the existing regulatory reform order procedure and what increases to sentences have been made. I hope that the Minister can give us an answer on that this evening.

The Earl of Onslow: Could we also please have some examples of what the Minister would like to do to remove or to add to minor criminal offences? It seems perfectly reasonable to alter parking regulations which may be over-burdensome in that way, especially as they probably arise as regulatory offences anyway. I do not think that one can complain about that. What things do the Government have in mind which they would like to change, and under which Act? All that we have had so far is blowing the trumpet of the fire regulations and then saying that the Game Act 1831 needs repeal. To add into English law more powers to allow Ministers to amend primary legislation just because of the Game Act 1831 seems a disproportionate constitutional reaction. Can we please have some concrete examples of where the Government think things are wrong? That is what we are always trying to get at.

Lord Bassam of Brighton: I shall address all the amendments that have been grouped together for the purposes of this debate, with the exception of Amendment No. 74, which the noble Lord, Lord Goodhart, indicated that he wanted to withdraw so that he could bring back at a later stage something that is better.

Lord Goodhart: I have not of course moved Amendment No. 74, so I cannot withdraw it. The first two subsections in Amendment No. 74 have been spoken to and debated and I shall not move the amendment when we get to it. But between now and next Monday, because there is time to table new amendments, I shall table an amendment that specifically deals with the question of removing the right to a jury trial, which will be to a later clause.

Lord Bassam of Brighton: I am grateful to the noble Lord for that elucidation.
	I have made the case in the past that to make and deliver better regulation we need to be able to repeal offences or reduce or remove sanctions for offences when they are considered no longer to be targeted or appropriate. An example of the reduction or removal of regulatory sanctions might be changing the sanctions connected to breaching a licensing regime for a particular activity. I have explained that in earlier debates. It is not new. Regulatory reform orders under the 2001 Act could reform legislation which imposed burdens, including sanctions, criminal or otherwise, affecting persons in the carrying-on of an activity, because of the definition of burden in Section 2 (1) of the 2001 Act.
	The definition in this Bill is narrower than that in the 2001 Act. In the Bill, the definition of sanctions, criminal or otherwise, means that an order can remove or reduce only criminal sanctions which relate to the carrying-on of an activity. This means that sanctions relating to offences under the general criminal law cannot be repealed or reduced, as opposed to what the noble Lord, Lord Norton, said. It would not be possible, for example, to remove or reduce by order sanctions for murder, rape or burglary. This is an important and essential safeguard against any inappropriate use of the order-making power in Clause 1. I know that noble Lords have been very exercised by that issue.
	Amendment No. 14, proposed by the noble Lord, Lord Jenkin, would remove this restriction. I imagine that this is not the effect which the noble Lord intended, and as the Government also prefer to make it explicit that the order-making powers are limited to removing or reducing sanctions which relate to the carrying-on of an activity, I hope that the noble Lord will not move his amendment.
	I return to why this definition of burdens is necessary to deliver better regulation. Professor Richard Macrory, professor of environmental law at UCL, has been appointed by the Government to carry out an independent review of the sanctions regimes used by regulators and local authorities. He notes:
	"Sanctions are an important part of any regulatory system. They provide a deterrent and can act as a catalyst to ensure that regulations are complied with".
	That may be stating the obvious, but it is important as it spells out exactly why regulations are necessary. I think we all agree that effective regulations and sanctions regimes play a critical part in regulating and encouraging proper behaviour. Professor Macrory's recommendations are likely to involve significant changes to the entire penalties regime to make it more responsive and more proportionate, and this Bill is not a substitute for that work. It is clear, however, that having a flexible, proportionate and responsive sanctions regime is a key part of any regulatory tool kit, and of the better regulation agenda.
	I should give an example of why this definition of burden is necessary to deliver sensible reform to established regulatory systems that have a real impact on those on the ground bound by the rules. Members of the Committee may have heard me mention at Second Reading that stakeholders have submitted, via the Government's internet site, a proposal to repeal arcane rules on selling game. The noble Earl, Lord Onslow, asked me not to quote this example, but it is a good one and I shall do so.

The Earl of Onslow: I asked the noble Lord not to quote the fire regulations. I accept that it is silly, but I am not sure that we need to change the constitution.

Lord Bassam of Brighton: I have made it clear that we are not changing the constitution and that we need to address issues such as these because they present burdens. The Game Act 1831 and the Game Licences Act 1860 impose burdens. The Government have committed to deal with those and so save businesses across the country tens of thousands of pounds. The reform is necessary because the 19th-century regime is now clearly out of date as a result of economic, social and legislative changes.
	The Government also propose to deliver reform by order so that we can usefully tackle other issues such as game dealing licences that are required under the Act. To do so, it will be necessary to repeal the criminal offences associated with carrying out certain activities without the following licences: licences to take or kill game under the Game Act 1831 and the Game Licences Act 1860; licences to deal in game granted under Section 18 of the Game Act 1831, as extended by Section 13 of the Game Licences Act 1860; and excise licence under Section 14 of the Game Licences Act 1860.
	Under the present Act it is possible to deliver this reform by order. It is the Government's view that useful legislative reform such as the above, which reduces burdens on the regulated, but which is too small to merit a Bill should continue to be possible by order under the present Bill.
	The Bill also carries over the ability under the present Act by order to replace sanctions with new sanctions or to create new sanctions. The fire safety regulatory reform order has attracted criticism and is an oft quoted example, but I shall use it again, though I am committed to undertaking further research on the subject. The RRO delivered under the 2001 Act is a good illustration of why it is necessary to deliver regulatory reform of a whole regime. As I said, the fire safety RRO delivered under the 2001 Act replaced a raft of legislation with one simple, risk-based fire safety regime, but it was necessary to replace the divergent systems of sanctions for non-compliance across 50 pieces of legislation. This was possible only because the Government were able to remove the burden created by the old sanctions for non-compliance and replace these with one harmonised, transparent, targeted and appropriate new system of sanctions.
	The Committee will, of course, be aware that Clause 7 restricts what orders can do in respect of criminal penalties: for example, orders cannot make provision to create a new offence that is punishable on indictment by more than two years' imprisonment. This and further safeguards are in place governing the use of the order-making power, including its use to repeal or reduce sanctions, criminal or otherwise. The Minister making the order must be satisfied that the preconditions in Clause 4 are met; that the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means; that the effect of the provision is proportionate to the policy objective; that the provision taken as a whole strikes a fair balance between the public interest and the interests of any person adversely affected by it; that the provision does not remove any necessary protection; and that the provision does not prevent any person continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. As the Committee knows, relevant parliamentary committees will have the statutory power to veto any order.
	I hope that, having heard that explanation, Members of the Committee will not press Amendments Nos. 12, 13 and 14.
	Amendment No. 72, which stands in the name of the noble Lord, Lord Norton of Louth, would delete the safeguard in Clause 7(1)(a) which ensures that an order may not make provision to create a new offence that is punishable, or increase the penalty for an existing offence so that it is punishable on indictment, with imprisonment for a term exceeding two years. This is an appropriate safeguard that would ensure that only sensible regulatory reform would be delivered by order. For those reasons I invite the noble Lord not to move his amendment.
	I believe that some time ago the noble Lord, Lord Peyton, asked what would be the effect of deleting the words "or otherwise". I assume that the noble Lord intended to ask what would be the effect of deleting the words "criminal or otherwise". If that were to happen, it would no longer be clear that non-criminal civil sanctions could be removed or reduced; in other words, a financial penalty imposed by a regulator, which is not a criminal fine. That would be the impact of the noble Lord's amendment.
	I hope that I have answered the points that were raised. If I have not, I apologise to the Committee. This has been a very constructive debate and some valuable points have been made. Nevertheless, I urge that the relevant amendments are not pressed.

Lord Goodhart: I have listened closely but I do not think that the noble Lord gave any justification whatever for rejecting the proposal in Amendment No. 15, standing in the name of the noble Lord, Lord Norton of Louth, or in Amendment No. 74, standing in my name, to restrict the power to use the regulatory reform orders under the Bill to remove the power of sentencing for more than two years.

Lord Bassam of Brighton: I apologise to the noble Lord; I did not deal with those amendments in detail. They would have the effect that an order could not abolish an offence which is punishable, on conviction, by a prison term of more than two years. This is possible under the 2001 Act, and this is a power which we would like to be retained under the Bill. The relevant amendment is closely linked to Clause 7, which places a limitation on the order-making powers in Part 1. It sets the maximum criminal penalties both for any new offence that an order creates, or for any existing offence where an order increases the penalty. Clause 7 maintains the limits in the 2001 Act. The limits in Clause 7 are the same as those in the European Communities Act 1972 and have been taken over from the 2001 Act. In each of those cases, however, they relate to the creation of new offences, not the abolition or reduction of existing penalties. A number of regulatory regimes have systems in which sanctions for non-compliance exceed two years or a fine exceeding level 5 on the standard scale. Health and safety and environmental legislation are two good examples.
	It would be arbitrary not to allow Ministers by order to propose a reduction of those sanctions if it is considered by the Minister and the parliamentary committees that it would be more appropriate and targeted to do so. The amendment is not necessary for the following reasons: the provisions in Clause 7 have been carried over and, it can be fairly argued, have worked well; the provisions in the 2001 Act have not been abused and any order must meet the preconditions in Clause 4 that I have described; and the parliamentary committees will have a statutory power to veto.
	For those reasons, we invite the noble Lord not to press those amendments.

Lord Peyton of Yeovil: Perhaps I should say to the noble Lord how grateful we all are to him for providing us with such a large meal in response to the amendments. I am relieved that he did not find another page in the extensive brief in front of him. I am ever so grateful to the noble Lord, Lord Borrie, who was the first to recognise that my simple and humble aim was to remove three words, "criminal or otherwise", on the grounds and in the hope that they would make no difference whatever to the sense of the Bill. Be that as it may, I would add only this: at my age, I am constantly weighed down with advice that I should keep my ambitions strictly under control. I assure the Committee that I thought that I was doing that tonight. I am horrified to find that my humble and modest amendment has led to the expenditure of no less than 38 minutes of the Committee's time. On that happy note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 13 to 15 not moved.]

Lord Evans of Temple Guiting: I beg to move that the House be resumed.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Afghanistan: UK Forces

Lord Drayson: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend the Parliamentary Under-Secretary of State for Defence and Minister for Veterans. The Statement is as follows:
	"Before I answer the honourable gentleman's question, I am sure that the whole House will join me in offering our condolences to the families of Corporal Thorpe and Lance Corporal Hashmi, the two soldiers killed on Saturday in Helmand province along with their interpreter. I have no doubt either that I speak for the House in wishing a speedy recovery to the five soldiers injured in the same attack. Our thoughts and prayers are with them all."I should also explain first, Mr Speaker, that my right honourable friend the Secretary of State has been unable to return to the House in time from his constituency, since the time that we decided to take this Urgent Question. "The losses of life that our forces have suffered over the past few weeks are a tragedy, but they do not mean that our mission in Afghanistan is somehow confused. The position of our Armed Forces in Afghanistan is clear. First and foremost, our troops are in Afghanistan to ensure that never again is it a safe haven for the likes of al-Qaeda and the Taliban. Quite simply, the risks are too great to us, our allies and the Afghan people for us to stand aside and allow the terrorists to return. That overriding aim was clear when my right honourable friend the Home Secretary announced our deployment to Helmand last January, and it is clear today."Our forces are our contribution to the expansion of the UN-authorised and NATO-led international security assistance force—ISAF. This is not just a British mission. Danish and Estonian troops are embedded into our forces in Helmand. Overall, 36 nations provide troops for ISAF. They, too, have had their casualties. A Romanian soldier was killed last month. Canadian and US troops have also died."That means that they are there to help foster the environment in which the Afghans, with the support of the wider international community, can develop sustainable governing institutions and spread the authority of central government across the country. It means that they are there to help build up the Afghan security forces. They are there to help set the conditions for developing the Afghan economy and infrastructure. As a result of that, it means we also help put in place the sort of environment in which the Afghans, again with international support, can make an impact on the narcotics trade."Yes, our Armed Forces have been in action against the Taliban. That was only to be expected. That was why we sent an air-mobile battle group; it was why we sent artillery; and it was why we sent Apache attack helicopters. Let me be candid: we would not have deployed such a formidable package if we did not think that there was a real threat to the safety of our Armed Forces. It was not pulled together on a whim. We did not pick and choose. We sent what the top military advice in the country, the chiefs of staff, said that we should send. So, I want to make it absolutely clear and plain that there has never been a sense that our aims and objectives were unfocused."Of course, as with any operation, we keep our forces under review. The House will know that we regularly announce force changes for Iraq, as various formations are deployed in and out of that theatre. Afghanistan is no different. We are working through such a process now. The honourable gentleman will know that it is the intention of my right honourable friend the Secretary of State to make an announcement on the roulement of 16 Air Assault Brigade before the Recess, but he will not do so until he has received the advice of the chiefs of staff on the precise details of the roulement. That will form part of a much wider NATO process that will be under way in July."The House will understand that I cannot go into more detail now. Honourable and right honourable Members can be assured, however, that, despite press reports today, commanders have not asked for extra infantry or air cover. We do not go into this kind of thing in detail, for reasons that the House will understand, but I can go as far as to say that the latest requests to the chiefs of staff, which are part of the planned ongoing analysis, include requests for enablers and engineering equipment. I want to make it clear that these requests were expected from the outset and that, as the campaign continues, we expect more requests from theatre, and that if those do include "combat" elements, we will consider them seriously and immediately, as we always do. "I must stress, however, that we are only at the start of a three-year operation. Our forces in Helmand only reached their full operating capability this weekend. There is still much to do. We all know that the democratically elected Afghan Government have had little sway in Helmand. It is inevitable that the earliest stages of such an operation will focus heavily on helping the Afghans to create security and stability. Only then can our wider aid and development programmes go forward unimpeded. They have already begun. Once fully under way, they will in turn reinforce security and stability as Helmand's legitimate economy grows and the rule of law expands and curbs the influence of the Taliban and the drugs traffickers."I shall say one final thing: we are committed to the success of the wider international project to help to rebuild Afghanistan. We can best dothat by making a real contribution—political, developmental and military—to the stabilisation of Helmand. Our Armed Forces are doing a magnificent job in making that happen. They should continue to receive the full support of all of us in this House".
	My Lords, that concludes the Statement.

Lord Astor of Hever: My Lords, I am grateful to the Minister for repeating the Statement. We, too, send our condolences to the families of the two soldiers, and their interpreter, who were killed, and we wish a speedy recovery to the five soldiers who were injured in the attack.
	I pay tribute to all those service men and women serving in Afghanistan. There is no question that they will receive full support from this side of the House. The question is whether they are all receiving the full support that they are entitled to expect from the Government. The Government have two tasks: to do everything to maximise the success of the mission and to minimise the threat to our troops but it would appear from weekend reports that both are at risk.
	The Statement makes it clear that commanders have asked not for extra infantry or air cover but only for enablers and engineering equipment but highly reliable sources on the ground have made it very clear that commanders need more than they have got. I understand that the Minister cannot go into details, but will he specifically confirm in this House thatthe Government have received no requests from commanders on the ground or the chiefs of staff for any additional combat troops, fixed-wing aircraft or helicopters, particularly now that the army has some experience on the ground?
	Is the Minister still satisfied that we have sufficient support helicopters, particularly where casualties are involved? My understanding is that there is real concern among those serving in Afghanistan about this issue. Is there sufficient medical support in theatre?
	The Commons Defence Committee has already warned that the British force lacks sufficient air support or transport helicopters. Despite radioing for aerial support, the soldiers who managed to fight their way out of the recent ambush were apparently told that no aircraft were available.
	While it is recognised that some of our troops may be killed when engaged in a firefight with the Taliban, those troops who were killed were successfully attacked within their own base. The Statement does not recognise this. The daily attacks raise fears over the lack of air cover for vulnerable outposts. It is acceptable to send our troops to Afghanistan but it is not acceptable to have them shot at with impunity.
	As the Minister stressed, this is not just a British mission but a coalition. We welcome the fact that some of our NATO allies have made a token contribution. But what representations have the Government made with our NATO partners and European allies to ensure that they really do pull their weight? Are their combatants under the same rules of engagement as our troops?
	I accept that reconstruction and opium eradication cannot start until the security situation is more stable. When do the Government anticipate that we may be able to make a start? Senior Taliban recruiting sergeants in Pakistan have revealed how they are smuggling very large numbers of new fighters into Afghanistan, despite Pakistani Government claims that they had tightened border security. What discussions are the Government having with the Pakistan authorities about insurgents crossing from the lawless border areas of Pakistan?
	We agree with the Statement that this mission must succeed. The risk of failure is too great to this country, our allies and the Afghan people for us to stand aside and allow the terrorists to return. But the Government must give our Armed Forces the manpower and equipment to get this job done.

Lord Garden: My Lords, I, too, thank the Minister for repeating the Statement and from these Benches we offer our deepest condolences to the families of Corporal Thorpe and Lance Corporal Hashmi, and our sympathy to those who were injured and their families.
	I can be relatively brief, given that we had such an extensive debate only last Thursday, which covered many of the issues relevant to the Afghanistan operation. I have some sympathy with the military commanders who are trying to set up what is a difficult and challenging mission, which is in a process of transition from the US coalition to the NATO operation. They are getting a surfeit of advice, I suggest, from all quarters. I do not believe that it is the role of us in Westminster to try to micromanage the tactical decisions in the operational theatre. I agree with the Statement's assertion that a serious force was sent out. We recognised that at the time when there was cross-party support from us all for the operation. We recognise that it is inevitable that as the situation develops changes will be needed depending on the intelligence gathered.
	We need an assurance from Ministers that requests from commanders will be dealt with promptly and will not be resource constrained. This is a real operation that cannot operate with resource constraints. I understand that the Prime Minister has today given such an assurance. In that case, perhaps the Minister will revisit some of the questions we asked on Thursday about mobility and in particular about helicopter lift and how this new opening of the treasure chest might help things. I am happy to give him one suggestion: that he might tonight go back to his office and authorise the necessary work on the eight Chinook HC3s that have been sitting in a shed for some years now, grounded through incompetence in how they were managed before. All that is needed is money to get those helicopters flying again. How long will it take from him making the decision tonight to our getting eight more Chinooks into theatre?
	While I accept that the commanders may not at the moment be asking for more close air support, it is clear that the current trend is for more engagements that are likely to cause difficulties in availability of close air support. Indeed, the Sunday Times gave a graphic account of the difficulties for a unit when it is engaged by the enemy and has to wait several hours for close air support to turn up. Will the Minister at least assure us that the Ministry of Defence is looking at options for how this might be taken forward if it looks as though we need extra forces? I am glad that the decision was made not to bring the Harriers home; that was a wise decision in the event but perhaps we need to think about how we rapidly reinforce the Harriers. In all of this, we must not forget our allies who own aircraft that could give close air support and helicopter lift. Are we pressing them to prepare in case they are needed in future?
	I mentioned on Thursday the end of the Canberra aircraft. I was at RAF Waddington on Saturday for the farewell to the Canberra. I learnt there—I was not aware of this—of the amount of work that the Canberra PR9 has been doing in Afghanistan over the past four years. It is a unique reconnaissance capability, which will disappear on 31 July, not to be replaced. The Statement referred to enablers. The reconnaissance capability that was there was an enabler; we are losing enablers, not necessarily gaining them.
	We, too, support the aims of the Afghanistan operation. We regret that the adventure in Iraq meant that we had done too little, too late in the past four years in Afghanistan. We need to make sure that we do not make that mistake again.

Lord Drayson: My Lords, the noble Lord, Lord Astor, made a number of points about the Statement, many of which I fundamentally disagree with. His central tenet was that our Armed Forces are not receiving full support from this Government. That is absolutely not the case. As was made clear today by No. 10, if extra resources are needed by our forces, those extra resources will be found. We need to recognise that these issues are, first and foremost, a matter for the military. It is for the military to assess what is required and for military commanders to decide. It is not for politicians to decide, and I am grateful to the noble Lord, Lord Garden, for saying that it would be wrong for Westminster to micromanage these issues.
	The noble Lord, Lord Astor, mentioned what he called highly reliable sources on the ground, but I think that we should listen to the commanders of our forces in Afghanistan. The commander of the British forces in Helmand has been quoted as saying that they are well trained, well prepared and well equipped. As today's Statement said, there have been no requests for combat troops or air cover. Therehave been requests for enablers and engineering equipment, but if our military commanders decide that they require additional equipment, resources or troops, those will be found.
	It must be recognised that we have said from the very beginning that this was going to be a difficult mission. I met the Chief of the Defence Staff this evening before coming to the House and he went through with me the thinking that has gone into this mission. As he said, we always knew that it was going to be a difficult mission, that we would take casualties and that this would be a difficult summer. But the force package was agreed at all levels and was appropriate at the start of the campaign. No campaign evolves exactly as planned: you have to adapt. As I said in the House last week, for a variety of reasons, the pace of this campaign has been faster than we originally anticipated, particularly in the north of Helmand province, and we need to respond to that. The Secretary of State and the Chief of the Defence Staff visit Afghanistan regularly and for some time they have been clear about how the situation is developing. It is important that we do not pay too much attention to whoever these highly reliable sources on the ground may be, or to the press reports that we have seen over the weekend, but that we look at the situation in context.
	I do not agree that we accept that our forces are there to be shot at with impunity—quite the opposite. The force package that we have sent is very robust. It is there to protect the people who are engaged in the reconstruction of Afghanistan. As the noble Lord, Lord Garden, said, the need to send artillery and the Air Assault Brigade was recognised from the beginning because of the environment that we were entering. We have recognised from the start the challenge in Helmand, but we know what we are doing and we are up to the task.

Lord Biffen: My Lords, from the Back Benches I join in giving condolences to those who have suffered in the recent exchanges. The Minister made a reasonable Statement in good faith, but perhaps he will allow me to reflect on the background to the whole business of invading and hoping to secure Afghanistan. To what extent has one reflected on the misfortunes of the Russians in the 19th century and more recently in trying to subject Afghanistan? How many troops did they employ? What were their losses? To what extent are we seeing the development of a situation where our losses begin to match some of those? After all, what we are seeking is not a modest operation; we are seeking to transform the political, economic and social structures of Afghanistan on an almost gargantuan scale. I do not get much encouragement from the fact that it will now be conducted by a multilateral force. A great deal of history shows that a multilateral force is even less effective than one conducted within the nation state. I fear that we are drifting into a policy which is largely American in its inspiration and which holds out little hope of advantage to us.

Lord Drayson: My Lords, I agree absolutely that we learn the lessons of history, but it is important that we pay attention to the fact that this is a completely different strategic situation. The role of our forces in Afghanistan, as part of a coalition force, is to support the democratically elected Afghan Government, assisting them in the reconstruction of the country's democratic process of governance and helping the development of aid within the country. We must recognise the significant need within that country for aid and how important it is for us to provide such security support as we can to enable that aid to get through, and we make a mistake if we compare what we are attempting today in Afghanistan with the occupations of various imperialist troops in the past.
	I disagree with the noble Lord's criticism of the coalition forces. We have seen the effectiveness of NATO over the past 50 years or so, and it is vital that we work with our coalition partners to provide the environment within Afghanistan in which the rule of law can flourish. That is the precondition for our being able to provide livelihoods which are an alternative to the dominant opium trade in the country. When we recognise that only about 8 per cent of the population of Afghanistan is involved in the narcotics trade but that the economy is dominated by the trade, and when we look at the level of the population that voted in the recent elections, we can see that there is no shortage of support for what we, together with the coalition forces, are attempting to achieve there. I say to the noble Lord that we believe we will be successful in this cause.

Lord Craig of Radley: My Lords—

Lord Mayhew of Twysden: My Lords—

Baroness Crawley: My Lords, I think that it is the turn of the Cross Benches.

Lord Craig of Radley: My Lords, I thank the Minister for his Statement. It suggests that the aims with which we set out, the force strength that we have committed and the opposition that we are currently meeting are more or less in line with the Government's anticipations. That is obviously reassuring but it has to be seen against some quite disturbing eyewitness media accounts, which we have all been reading recently. Nevertheless, one accepts the Government's assurance.
	However, I am concerned that we are now exposed on two fronts in two different theatres against insurgents, whose performances are pretty unpredictable and can get extremely unpleasant. In either or both theatres, there will be pressure on some of the supporting elements—the helicopters, the transport and so on. Can the Minister reassure the House that there is sufficient reserve to cope with any increase in the opposition which our forces are meeting in either Iraq or Afghanistan? It would be great to know that reinforcement is available, should it be called upon. I am not asking for details but for confirmation of the general principle that the need for reinforcement could be met if required.

Lord Drayson: My Lords, I am grateful to the noble and gallant Lord for highlighting a central point: that much concern has been raised by newspaper reports over the weekend. In those circumstances, it is very important for us to pay clear attention to what our commanding officers—the military officers on the ground—are saying. For example, Lieutenant General David Richards has said, "Bottom line, I am content with what I have and I have the resources required to carry out the mission". The noble and gallant Lord asks whether we have sufficient reserves to cope with the two main operational theatres that we face today in Iraq and Afghanistan. Yes, we have the reserves to do that. We shall provide additional resources quickly if they are requested by the military commanders. I stress again that decisions on what resources are required in the field are not decisions for politicians to take.
	A number of noble Lords have spoken about helicopters. The noble Lord, Lord Garden, asked specifically about the eight grounded Chinooks. I wish the only problem was money. If I could get those eight Chinooks fixed by just throwing money at the problem, the situation would be much simpler to resolve. We are working very hard to find a fix-to-field solution for those Chinooks that makes sense and I hope that we can get that done this year. That is part of a general issue; on a number of occasions we have said to the House that we lack enough helicopter lift. That is absolutely right. We estimate that at about 15 per cent. As we have recently announced, we need to take action on improving the serviceability and availability of our existing fleet and on ordering more helicopters. I want to make it absolutely clear that, if we require more helicopters for our operations in Afghanistan, they will be provided. I understand that military commanders have already authorised additional helicopter hours, which was the point that we discussed in this House about a week ago. We shall look at options for extra resources closely and, if they are requested, they will be provided.

Lord Mayhew of Twysden: My Lords, does the Minister agree with me that the developing situation with which the Statement is concerned re-emphasises the need for the rules of engagement to be clear, realistic and fit for the developing purposes? Will he undertake to publish in this House the rules of engagement and any extent to which they may be amended?

Lord Drayson: No, my Lords, absolutely not. Publishing the rules of engagement would just play into the hands of the opposition. It would be very helpful for the opposition to know exactly the rules of engagement under which our forces are operating at any time. Rules of engagement are set by Governments. Different Governments operating within the coalition framework operate under different rules of engagement. That has been the practice for many decades, and is not a particular issue relating to these operations. Despite not being able to disclose to the House the detail of the rules of engagement, I reassure noble Lords that they are absolutely robust enough for the job. In all the issues that have been raised regarding operations in Iraq, there have not been issues relating to firefights. We do not regard any concerns about rules of engagement to be relevant to our operations at present in Afghanistan.

The Lord Bishop of Chester: My Lords, I join others in sending my sympathy and condolences to all those who have been affected by these deaths, especially the close families. The Statement focused mainly on the military aspects of the situation, but within that there are important political considerations. On the military, I would like to hear more from the Minister about the training of local Afghan forces to support and to replace the international forces. The Minister spoke of the aim of developing sustainable governing institutions in Afghanistan. It would be good to hear more about the evidence of real progress towards sustainable governing institutions. In that connection, the role of the warlords and poppy cultivation come to mind.

Lord Drayson: My Lords, I am grateful to the right reverend Prelate for highlighting those two very important aspects. On the security forces, two battalions of the Afghan National Army are currently in Helmand province, although they are not at full strength. One of the key roles that we have in the province is to develop the capability of the Afghan National Army and the police. From our experience in Iraq, we know how that can be done. We believe we have been extremely successful with the Iraqi security forces and we regard that as something that will be successful in Afghanistan.
	On the police, in January, the latest month for which I have data, there were approximately 1,700 police personnel. We have to be realistic about the reliability of the police within that area, where governance and the rule of law are only beginning to be established. That is why it is so important in that environment in Helmand province, where our troops, as part of the coalition, are providing the security framework to enable the reconstruction to take place, to recognise that we start from a very low base. It is a very challenging area, as it is dominated by narcotics production and by the factions of the warlords and the mafia.
	It will take time to address those issues and to provide alternative livelihoods. The strategy that we are adopting is based on the development of so-called "ink spots" of reconstruction, with improvements in governance within a security framework provided by our troops. That strategy has worked extremely successfully in the past and, despite the real challenges which we recognise in Afghanistan, we anticipate that it will work there, too.

Lord Brooke of Sutton Mandeville: My Lords, I believe that I am correct in saying that the Royal Engineers have been building the main British base in Helmand province. Were the two lives that were tragically lost on Saturday lost in the main base or in a separate base? In so far as the Minister can tell the House, how close is the completion of the construction of the main base?

Lord Drayson: My Lords, I am sure that the House will appreciate that it is just not possible for me to detail the level of construction of our bases. I am sure that noble Lords will understand that we must do nothing in our debate this evening to prejudice the safety of our troops on operations there.

Earl Attlee: My Lords, I am grateful to the Minister for repeating the Statement. I remind the House of my peripheral interest. The casualties are, of course, extremely regrettable. Sadly, we know full well that they will not be the last, but it is our duty to provide full moral support.
	During a recent oral Question, I asked about the funding for the operation in Afghanistan. The Minister pointed, I think, to £1 billion of funding, but presumably that includes the DfID funding for the provincial reconstruction teams that we hope will do such an important task. No doubt there is much, quite carefully targeted work being done, which is very welcome. Is the military side of the operation funded from the MoD main budget as an enduring operation, or is the operation funded on the same basis as OPTELIC 1? In other words, is the operation an enduring one, funded by the MoD, or an additional one, in which the marginal or avoidable costs are funded from central Government? That is important because the top military advice in the country, referred to by the Minister, was given in the context of a funding envelope, as was the planning.
	In another oral Question, my noble friend Lord Astor of Hever asked about helicopters. The Minister stressed the importance of managing the helicopter flying hours. Does that mean that commanders in the field are being rationed on helicopter flying hours, even if it is necessary to avoid breaching logistic limits rather than financial ones? It is fine for the Prime Minister to talk about extra resources being provided if necessary, but no one can do anything about a physical limit.
	My noble and learned friend Lord Mayhew asked about the rules of engagement, and the Minister gave absolutely the right answer. The only point to note is that our opponents in these sorts of operations always know exactly what our rules of engagement are. The only people who do not know are Members of Parliament.
	The Minister says that necessary manpower resources would be provided if necessary. It is important to remember that, if we wanted to deploy another brigade, we could not. We do not have another brigade. Part of the reason for that is the Bowmanisation project, now on track, which unfortunately takes out a whole brigade, so we currently have extremely limited manpower.

Lord Drayson: My Lords, let me be crystal clear about funding. There is no sense in which this operation is done to a budget. The operation funding does not come within the MoD's defence budget; the £1 billion over five years, within which there is a three-year deployment, comes from the reserve.
	There is no question of the military being restricted to flying so many hours. It is about managing and planning the operation so that the availability of aircraft, flight crews, spares and logistics is managed coherently, taking into account the fact that we expect this to be a long campaign. This is about sustainability and managing our resources effectively. I say again that, if we require additional resources to do the job, they will be provided.

Baroness Dean of Thornton-le-Fylde: My Lords, I thank the Minister for repeating the Statement. It was certainly needed, because of the printed media, television and radio coverage over the weekend. From this side of the House, I entirely endorse the sympathies that we all have for the families of Corporal Thorpe and Lance Corporal Hashmi, together with the family of their interpreter. I hope that the five injured service personnel have a full and speedy recovery.
	The Afghan operation received support from all round this House when it was announced. This weekend has clearly demonstrated concerns that a number of people rightly had about how hazardous it was going to be. We may well be faced with other sad stories ahead.
	Many of us know the financial pressures that the MoD is under and we have just heard that this money does not necessarily come out of day-to-day budgets. Will the Minister confirm that, should our Armed Forces make a request for additional resources, they will receive not simply what they can get by with but what they absolutely need? We all know that our services have a culture of "can do, will do", whether they are fully resourced or not. On this occasion, we must take that into account even more.
	Finally, are steps being taken with the Government of Pakistan to see what they are going to do to further secure their borders? That is clearly a serious element of this operation.

Lord Drayson: My Lords, I am grateful to my noble friend for giving me the opportunity to confirm absolutely that we recognise that our forces have a "can do, will do" approach. That is why they are as good as they are. That will be matched by the absolute commitment that was given by No. 10 today, which was repeated in the other place and which I am happy to repeat in this House: if military commanders come to the conclusion that they require further resources, those resources will be provided.
	My noble friend also asked about border security. We must recognise that the border geography of the two countries presents a challenge to our Armed Forces, but it is a challenge that—in co-operation with our coalition partners and, most important, with the developing capability of the Afghans themselves—we will in time be able to address.
	I note that I did not answer the part of the right reverend Prelate's question on human rights progress. I shall give your Lordships one example of why our forces are there, providing security for the development of vitally important human rights in Afghanistan: women. Headmasters have been taken out of their schools and beheaded in front of their families and schoolchildren for the so-called crime of teaching girls. Let us look at this country's progress: 87 women were elected as members of the 351-person National Assembly. In September 2005, despite the level of intimidation, 40 per cent of votes were cast by women. In March 2005, President Karzai appointed the first female governor, to Bamiyan province. More clearly than anything, that tells us what role our Armed Forces are playing in providing the muscle to allow proper governance and human rights to develop in the country.

Baroness Crawley: My Lords, I suggest that the Committee stage of the Legislative and Regulatory Reform Bill begin again not before 8.55 pm.

Paediatric Medicines

Baroness Thomas of Walliswood: rose to ask Her Majesty's Government, in the light of the report of the European Union Committee on Paediatric Medicines: Proposed EU Regulation (20th Report, HL Paper 101), what steps they are taking to ensure that the proposed European Union regulation on medicinal products for paediatric use will meet satisfactory ethical standards on implementation, that the incentives proposed will be effective, equitable and proportionate and that the working of the regulation will be rigorously reviewed.
	My Lords, we are here to discuss our recent report on paediatric medicine. The Commission's proposal for regulating medicinal products for paediatric use reached Sub-Committee G in December 2004, and by the summer of 2005 it was clear that the UK Government wanted to achieve the approval of the document by the end of the UK presidency.
	The main elements of the proposal were, first, a package of rewards and incentives to encourage the pharmaceutical industry to test products for use in children across the European Union and to develop and/or adapt them to paediatric use. Secondly, the European Medicines Agency would appoint an expert paediatric committee to oversee and assess paediatric investigation plans for developing medicinal products for children. Thirdly, a European clinical trials network would be set up to foster communication and collaboration on paediatric studies throughout the EU. Fourthly, authorisation procedures would be based on the Community's clinical trials directive and details of paediatric trials would be entered on the European clinical trials database. Medicines tested for paediatric use would be sold with a special label indicating that fact.
	Sub-Committee G appreciated the potential value of encouraging the clinical testing of medicines for paediatric use across the EU market. However, there were ethical and practical concerns and a decision was taken to undertake a brief inquiry. We received a wide range of evidence from interested parties including, most helpfully, from Professor Sir Cyril Chantler, the chairman of the Great Ormond Street Trust. We also saw the results of the consultation carried out by the Healthcare Products Regulatory Agency. We also had a good deal of correspondence and a very useful evidence session with the then Minister of State at the Department of Health, the right honourable Jane Kennedy MP, and her officials.
	As our report shows, we were convinced that there was a real and urgent need for this regulation. More than half of all the medicines currently given to children and 90 per cent of those given to newborn babies have never been tested for that use. Furthermore, not only can the results of tests of medicines in adults not be extrapolated reliably for their use in children, but children can react very differently to drugs according to their age, among other factors. Many drugs are formulated in a way that does not suit children—in particular, very young children. Moreover, the pharmaceutical industry can find it relatively unrewarding to do the necessary but expensive research needed to produce or adapt medicines for children's use because the market is relatively small and complicated. Meanwhile attempts by member states to encourage it to do so have not been successful.
	But we concluded that the proposed package of rewards and incentives, although based on a successful scheme in the United States, was something of a leap in the dark. Under the scheme, pharmaceutical companies can expect an extension of the sole right of sale of their product if they do the research required to prove the product's efficacy in treating children. But we could not judge with confidence whether the proposed regulation would have the desired result, whether the manufacturers would be insufficiently, reasonably or even excessively rewarded and what the effect on health service budgets would be. We also understood that some member states opposed any delay in the release of medicinal products to the generic manufacturers, who are significant players in new member states in eastern Europe.
	As the December 2005 Council meeting approached, it was clear that member states were ready to approve the proposal. We were aware of the weight of professional opinion in this country that the proposal should be implemented as soon as possible. We concluded that it would not be sensible to stand in the way of such an agreement and, exceptionally, agreed to lift scrutiny in advance of publication of the report. Political agreement was secured by the UK presidency at that Council meeting.
	Two issues still concerned the committee. The first was whether the guidelines for the detailed application of the regulation really would take on members' concerns about the consent of minors, the rights of children and their parents, the proper publication of all the research projects in a transparent way and product information and labelling. The second was the legal base for the new regulation. On the matter of guidelines, we had been partially reassured by meeting the officials dealing with the details under comitology procedure. They clearly understood the committee's concerns and assured us that these matters were being pursued by them in committee. It was also agreed by the Minister that, as a condition of lifting scrutiny, officials would brief Sub-Committee G on the development of the guidelines once the regulation was adopted and that the Government would hold the Commission to its commitments to give a full review of the working of the regulation and on access to the database. The Minister further agreed that when the operation of the regulation came under review—which might be in six or 10 years' time—our successors would be briefed on the practical operation of the guidelines. I hope the Minister can confirm tonight that that approach still reflects the Government's intentions.
	I now turn to the matter of legal base, which is always of importance to the Select Committee. There was some concern that the Government, despite their judgment that the proposed legal base—Article 95 of the EC Treaty—was not appropriate, were preparing to give political consent to the regulation so long as they lodged a minute statement officially recording their objection. We understand that that was done and that several relevant rulings have since been given by the ECJ. Can the Minister bring us up to date on this matter?
	After the report had been published, a final and unexpected coda to our deliberations was provided by the representations from the Association of the British Pharmaceutical Industry to the effect that the amount of time allowed for companies to make application for the right to conduct tests was insufficient, particularly in the years immediately following implementation of the regulation. We understand that a European Parliament common position to that effect was adopted on June 1. We also understand that the Government endorse that position, and it would be helpful if the Minister could explain the latest position.
	I have tried to give an overview of our report. I am confident that other members of the sub-committee will be able to fill out many of the details. It was a piece of work to which every member brought real personal commitment and knowledge. I am delighted that this debate has attracted speakers who were not members of the committee. I cannot close without thanking the committee secretary, Gordon Baker, and his staff for all their support. As Mr Baker may have to leave us before another of these occasions occurs, I should put on record our very real appreciation of his hard work, cheerful disposition and impressive drafting skills that have been of such immense service to the committee and to all its members.

Lord Turnberg: My Lords, I congratulate the noble Baroness, Lady Thomas of Walliswood, and her committee on a thorough, commendable and—dare I say?—readable report. I also congratulate her on her excellent introduction.
	I find it remarkable that although we go through such an elaborate and robust system of testing drugs before they are used in adults, many drugs given to children have not been tested in children at all. Before a new drug can be given to an adult, it has to go through several phases of trials to assess its safety and efficacy in treating the disease for which it is prescribed. However, the practice in children, more often than not, has simply been to scale down the adult dose according to weight and age on the basis that a child is just a small adult and ignoring the fact that a child's metabolism may be quite different from that of an adult. The reason for that is that very few drugs have been tested in children, so unfortunate paediatricians have to rely on their experience and prescribe off licence or not prescribe at all. Every day, paediatricians face the dilemma of whether it is more unethical to prescribe a drug that has not been tested or to deny treatment to a sick child. They do not have the comprehensive information on risks and benefits that would allow them to make an informed judgment. For example, 90 per cent of drugs used in the very emotive group of patients—the neonatal babies in intensive care—are unlicensed or off-label medicines. Therefore, the new EU regulations that are designed to encourage the testing of drugs in children are welcome. Indeed, they are essential.
	The regulation follows fairly closely changes introduced in the United States that were shown to be effective in increasing the number of drugs tested. I understand that some 30,000 children in the US have been entered in clinical trials. This is an extremely sensitive area because no parent wishes to see his child used as a guinea pig, but if that idea is followed through to its logical conclusion, every child becomes a guinea pig if the drugs have not been tested properly. It can be argued that not to do proper studies in children is unethical. The answer lies in sensitive and carefully managed systems of consent and extreme care with safety issues, which are covered by ethics committees. The evidence is that these issues can be fully taken into account with due care. One study by the National Perinatal Epidemiology Unit in Oxford retrospectively questioned 100 parents of neonatal babies who had been in a controlled trial of extra-corporeal membrane oxygenation. They were asked whether they had had any qualms about their babies being involved in the trial and none said that they regretted it, even though some babies in this group of extremely ill neonates had died. So it can be done, and with carefully conducted controlled trials it is now possible to treat so many forms of childhood leukaemia so well and new ways of treating childhood asthma have become possible. So I am sure that the new EU regulation, which offers some important inducements to the pharmaceutical industry, will be well received. Although it may be a great leap of faith, we have the evidence of some success, at least, from the American experience.
	Paediatricians are now well set up to undertake trials in the UK with children in a sensitive and highly ethical way. The guidelines from the Royal College of Paediatrics and Child Health, which have been helpfully appended to the report, give some confidence. They describe how it is possible to obtain consent from a child who is able to give consent, and recommends that that should be the normal course, and only if the child is unable to give consent—too young—should parental consent triumph.
	It will be important for government guidelines to be constructed in such a way as to give reassurance to parents and children as well as to paediatricians, and that they ensure full transparency. They should also encourage rapid and wide dissemination of results so that drugs which are shown to be of value can be used as soon as possible, and those that are not can be avoided.
	Finally, this regulation is welcomed by paediatricians and I hope that the Government will move quickly so that it can be adopted.

Lord Colwyn: My Lords, I thank the noble Baroness, Lady Thomas, for her chairmanship of the committee and the way she introduced the debate this evening, Gordon Baker for his advice and guidance, and Sir Cyril Chantler for his expert opinions. The problem of funding complete trials of adult medicines used for children means that thousands are being prescribed "off-label" therapies that have not been licensed for such use.
	Paediatricians and paediatric pharmacists are faced with the difficulty of prescribing and supplying medicines for children without the support of clinical trial evidence, which is available for adult medicines from the specification of product characteristics supplied by the manufacturer.
	At least one unlicensed or off-label drug is received by 11 per cent of children treated at home by their GP, 67 per cent of children in hospitals across Europe,70 per cent of children in paediatric intensive care and, as we have heard from the noble Lord, Lord Turnberg, 90 per cent of babies in neonatal intensive care.
	A study by the University of Liverpool found that 6 per cent of children had suffered adverse reactions to an off-label medicine, and French research has suggested that the risk of serious side effects is up to three times higher.
	The use of off-label and unlicensed drugs to treat children is widespread and occurs in medical and surgical wards as well as with critically ill children. Off-label use occurs more frequently—drugs are being used in children at ages for which they have not been licensed and evaluated—at doses greater than that recommended by the manufacturers and for indications outside the terms of the product licence.
	The committee's conclusion is that there is an overwhelming and urgent need to take effective action at European level to govern clinical trials in children and the authorisation of medicinal products for paediatric use with the minimum delay.
	The EU regulation recognises that paediatric licensing is essential for all categories of medicines for children. This includes new medicines yet to be authorised, existing medicines under patent protection and those where patent protection has expired. It attempts to use both obligation and incentives and rewards to achieve this.
	Children are subject to many of the same diseases as adults and, as would be expected, are treated with the same drugs. The absence of paediatric testing and labelling causes significant risks for children. Inadequate dosing information exposes them to adverse reactions that could be avoided if such information were provided in product labelling. The absence of paediatric testing and labelling may also expose children to ineffective treatment through under-dosing or may deny them the benefit of therapeutic advances because physicians choose to prescribe existing, less effective medication because of insufficient paediatric information about a new medication.
	The medical community has shown increased concern about the lack of information for over 20 years. My own experience within a dental environment has shown me that different drugs work in different ways at different ages. Children are defined as "someone under 19". It seems obvious to me that the pharmaceutical companies should ideally provide information about how drugs work in several stages of childhood. A drug will have a variable effect on a neonate, a newborn infant, a one to four year-old, a four to 10 year-old, a 10 to 13 year-old and a 13 to 19 year-old, but they are all classified as "children".
	It is difficult enough for pharmaceutical companies to undertake adequate phased testing of drugs for adults. To have to evaluate a medicine for the six additional categories that I have listed would take many years and bear a disproportionate cost, perhaps even making it impracticable to consider the use of the drug for children.
	The impact assessment of the proposed EU regulation estimated that to deal with the increased number of applications, the EMEA budget would have to be increased by between 67 to 150 per cent, or €130 million to €195 million, the cost to the pharmaceutical industry being about €4 million per product.
	It is proposed that medicines and products covered by existing patents, or granted market exclusivity by supplementary protection certificates under existing EMEA authorisation procedures, shall be entitled to a six-month extension of the market exclusivity and an additional two years' market exclusivity to which orphan medicinal products are entitled under existing EMEA authorisation procedures, making 12 years in all.
	Ten years of data protection for new paediatric studies would also be granted to off-patent medicinal products developed specifically for use in children. Products developed under this provision would be granted paediatric use marketing authorisation. Historically, this has been successful in the USA, which introduced the "paediatric rule" and the "paediatric exclusivity" provisions, adopted in 1998 and 1997 respectively. This legislation provides six months' exclusivity in return for conducting paediatric studies and has been highly effective in generating paediatric studies on many drugs and in providing useful new information in product labelling.
	Some categories of drugs and some age groups remain inadequately studied despite these new incentives, but suggestions have been made for modifications to the paediatric exclusivity provision that may address these gaps.
	For some products and for some age groups the incentives provided have not produced proposals to conduct paediatric studies. The incentive is not adequate for old antibiotics and other drugs lacking market exclusivity or patent protection because these products are not eligible for any exclusivity under the current paediatric exclusivity provision.
	While the incentive provided by paediatric exclusivity provision has been adequate for many products, it has naturally tended to produce paediatric studies on those products where the exclusivity has the greatest value, and not on those which no longer have patent protection or exclusivity, or small markets.
	My time is up. Manufacturers should be encouraged with further incentives to study those drugs that provide the greatest health benefit to children, including those that are not eligible for incentives in the current situation. I hope our report will influence further consideration of this situation.

Baroness Howarth of Breckland: My Lords, as a member of the sub-committee, I add my tributes to the noble Baroness, Lady Thomas, and Gordon Baker. I am always totally amazed how even my modest comments can be turned into erudite recommendations. I have particular declared interests in children and health and I must say that the work on the report gave me equal proportions of satisfaction and dismay. I had satisfaction that, at last, paediatric medicines are being addressed, but dismay that, having reached the 21st century, there is still so far to go, although I am encouraged by the contribution of the noble Lord, Lord Turnberg, who seems to think that at least something is moving forward.
	We have heard several times that children are not small adults. We heard from the excellent evidence of Sir Cyril Chantler that there are two major problems with the use of unlicensed medicines: how children's metabolism deals with the drug, and the effect on the child. The European Commission stated that 50 per cent to 90 per cent of all medicinal products used in the paediatric population have never been studied or authorised for use. Consequently, among the long list of problems outlined by Sir Cyril and well known to those dealing with children is the control of pain. Were the situations where children suffer to happen to adults, they would simply not be accepted. There would be a major campaign. We hope that our report will help the Government to take forward this important issue of paediatric medicine.
	As with all pharmaceuticals, the need for rewards and incentives is a major driver. The noble Baroness, Lady Thomas, and the noble Lord, Lord Colwyn, have both outlined the issues; the noble Lord, Lord Colwyn, did so in detail. It is therefore enough for me to observe that it appears that, without the intervention of this directive, children's medicines will be developed by market forces rather than any altruism or proper concern for our most precious asset: our children. That is why the directive is vital.
	There is a similar issue with research where, under the directive, the European Medicines Agency will oversee and co-ordinate the tasks envisaged by the proposed directive, but the Royal College of General Practitioners questioned whether it would be best placed to provide the proposed scientific advice, which would be a significant undertaking. Unfortunately, the sub-committee was unable to judge from the evidence that we received whether the proposed funding framework would be adequate. What progress has been made in that area and on the need for a separate Community-funded programme of research?
	The sub-committee was much exercised about the ethical considerations of consent. Although agreeing that the health and welfare of children must be the overriding priority for conducting paediatric trials, in her evidence the Minister drew a distinction between what she described as a properly informed decision and one that might be no more than what she called a whim.
	We were troubled by that issue. I add my concern that children be consulted appropriately by those who understand how to communicate with them, not by those who have a vested interest in getting a particular answer. Anything that the Government can do to progress that would be most welcome.
	In the short time available, I also mention labelling—a topic on which I spent much time as a member of the board of the Food Standards Agency. It is equally important that we get that right for children's medicine. We hope that the Government will be active at EU level and in the UK to ensure that products are labelled in a way that indicates their suitability for children, taking into account their size and development, and in a way that parents can understand and is distinctive.
	If we get all that on track, it will be of little use if the Government do not get right the services for specialist paediatric groups—those services in which the medicines will be used. Stepping outside the brief of the sub-committee, I take this opportunity to urge the Government to speed up their major review of cardiac surgery for specialist care. I know that the Government have started that but, although Scotland, Wales and Ireland have already moved to a high level of care for all, rather than a postcode lottery, we in England still have no clear plan for central funding and standards.
	I realise that the Minister may not be able to answer that point this evening; if he is not, could he write to me to explain how the proposed working party is progressing? Paediatric medicines will then have a proper context for progress.

Lord Trefgarne: My Lords, may I speak for the children? I am the father of three and the grandfather of one. My three children have now grown up, but I have a grandson of just four years old and I wonder whether we are taking their interests as fully into account as we should. Of course, we all wish them well; of course we all want them treated, especially when they are very ill. That is usually when untried and untested medicines are offered.
	I am very troubled by the arrangements for testing medicines on small children—and tested they must be, as my noble friend Lord Colwyn made clear. Medicines do not react in the same way for small children as they do for adults. It is no longer possible simply to prescribe a dose for an adult and then scale it down appropriately for a young person. That technique, which may have been widespread in the past, is now widely accepted as unacceptable.
	There are real difficulties in testing drugs on small children. Despite what some of the evidence before the sub-committee suggested, I do not believe that it is really possible to obtain informed consent from a very young person. We were told that, in some circumstances, it was possible to obtain that consent from, say, only a 10 year-old child. I have grave doubts about that proposition. I know that the noble Baroness, Lady Howarth, thinks rather differently—she is, of course, an expert in these matters—but if I cast my own thoughts back to all those years ago, if I can, when I was that young, and more relevantly to my own children when they were that age, I do not think it is possible to obtain informed consent from a child of that age, especially if they happen to be ill, and even more so if they are very ill and we are offering them a medicine that is not properly trialled.
	It is recognised that nowadays a large number of small children, especially very small children, are given medicines off-label—in other words, they are not adequately tested. Nor is it easy to obtain the consent of the parent to such things when, for example, the child is very ill. I ask your Lordships to consider how they would react if, their child desperately ill and they at the extremities of distress, they were asked to give consent to the use of an untried medicine. They would hasten to agree, would they not? I dare say I would have done so had I been in that circumstance. We have a very real difficulty. I am glad that the European Commission is addressing this problem, and I hope that the medical profession will take account of the serious difficulties that confront us in this matter.

Baroness Neuberger: My Lords, I, too, thank my noble friend Lady Thomas for chairing the inquiry, and our remarkable Clerk, Gordon Baker, for his superb drafting of the report.
	It is undoubtedly worth saying how wide the support has been generally for the regulation. Broadly speaking, the medical profession and others have really wanted it, as the noble Lord, Lord Turnberg, has made clear. As we have also heard, however, several issues concerned us. My noble friend Lady Thomas alluded to the fact that drugs are not tested on children, as did the noble Lord, Lord Colwyn, who commented that the pharmaceutical industry does not find it worthwhile to do some of the research. The noble Lords, Lord Turnberg and Lord Colwyn, both spoke about the ethics of prescribing and providing drugs for children that were not tested on children. There were also concerns about further incentives for the pharmaceutical companies and general issues around testing on children, and we have just heard the comments of the noble Lord, Lord Trefgarne, who is very worried about children being able to give consent. Perhaps the issue of children's consent is the one that troubled us the most, as the noble Baroness, Lady Howarth, has said. It certainly troubled me the most.
	The clinical trials directive requires that a person with parental responsibility, or a legal representative, must give informed consent to any trial involving a minor, whereas the explicit wish of a minor to refuse to participate or to be withdrawn from clinical trials "must be considered". A clinical trial has to be designed to minimise pain and discomfort, fear and other foreseeable risks in relation to the disease and the developmental stage of the child concerned. We drew the attention of Professor Chantler, the chairman of Great Ormond Street Hospital, who gave evidence to us, to that statement. He was very firm about this. He argued, contrary to the view of the noble Lord, Lord Trefgarne, that,
	"one would be surprised how it is possible to find out what is in the child's interest from the child's point of view in very young children: you just have to find more imaginative ways of communicating with them. The notion that you would do something to a child that did not involve the child's consent is not acceptable".
	He continued—I do believe it is worth quoting:
	"Obviously there are occasions, I know, where doctors and nurses have to do things and the child does not want them done and the child may cry, but you pay a terrible price for that. I constantly as a paediatrician was upset by people saying to children, 'This isn't going to hurt.' Of course it is going to hurt. Once you say it is not going to hurt and then stick a needle in them and they cry, two things have happened: one is the child has suffered pain which you might have been able to find a way of avoiding—and we are better at that now—but, perhaps more importantly, you have lost that child's trust forever. It is a very serious matter to do something to a child that does not have the child's consent. Participation in a trial, I think, would require the child's consent as well as the family's".
	Professor Chantler thinks that the guidance will need to be strong enough. We do not yet have that guidance. We await the guidelines and, like my noble friend Lady Thomas, we very much hope that the Government will watch this closely and ensure that the guidelines make it explicit that the child's wishes have to be more than taken into account; they have to be recognised. But it is a complicated issue. We still live in a society where children's views are often insufficiently taken into account. The first work—20 years ago—by Richard Nicholson showed, in research ethics committees looking at research on children, that consent was less likely to be given to research on children if a nurse was present, regardless of whether she spoke. It suggested that there were various people around who were quite prepared to carry on doing things that some of us now might not find acceptable. Children have views, so we have to clarify the extent to which the child's view is to be taken into account.
	When the Minister came to speak to us, she was not worried that the child's views must be considered, but wanted to draw a distinction between a properly informed decision by a child and one that might be no more than a "whim" on the day concerned. The noble Baroness, Lady Howarth, has already drawn our attention to that. There are two problems with it. The first is that adults are allowed to be subject to whims or fancies in consent to research; and so one has to ask why children should not be. Secondly, there is a real problem, on which Priscilla Alderson has been the great expert, about consent from children. What if the child has just had enough? Children who are very sick sometimes express the view that they have just had enough and want no more done.
	We were much reassured by Sir Cyril Chantler and by the Minister's assurances to us. However, until we see the regulations and guidance, and until we know that the database on research in children will be freely available, we cannot rest completely. Children's interests must be taken into account. I hope that the Minister will be able to give us the Government's reassurance on this matter.

Lord McColl of Dulwich: My Lords, I must first apologise for being a few minutes late. My excuse is that I have just flown in from Montreal and am slightly disoriented. However, I thank the noble Baroness, Lady Thomas of Walliswood, for chairing this splendid committee and for coming to such sensible conclusions. It is good to acknowledge too the work of Sir Cyril Chantler, with whom I had the great privilege of working closely for many years at Guy's Hospital. He is a most remarkable person.
	I remember a couple coming to Sir Cyril with their child who was in renal failure. He not only carefully explained the situation to the parents but involved the child in the discussions. Afterwards, the parents were slightly embarrassed and said, "Doctor, we hope you don't mind us asking the question, but before you begin treatment, could we take the child to Lourdes?". Sir Cyril characteristically said, "No; that is absolutely fine. You see, we're going to need all the help we can get". The parents noticed that in the eyes of this great man there was a tear, and it was very helpful to them. Incidentally, the child went to Lourdes and no sooner had they arrived than they received a telegram saying "Come back. We have found a kidney". A kidney transplant was carried out and the child was successfully treated. So it was a great end to that story.
	We also dealt with the subject of whether a child should be informed of what is coming. One should never say, "This isn't going to hurt". Sir Cyril again comes to mind. My youngest child has a severe heart problem and hated the way in which doctors would say "This isn't going to hurt you at all", after which they would stick in a needle which would be extremely painful. So we hit on the bright idea of getting Sir Cyril always to take the blood from my daughter—which for years, as noble Lords can imagine, he did perfectly.
	One conflict which has been discussed is whether children can really give consent. There are of course two sides to it. As my noble friend Lord Trefgarne pointed out, it is hard to imagine how the parent of a child who is desperately ill or perhaps dying feels when a doctor asks, "Do you mind if we try out this new drug on your child?". But in this day and age we simply have to involve both the parents and the child in the decision-making process. So the more expert we get at communicating with the young, the easier this process becomes.
	Perhaps I may emphasise what was said by the noble Lord, Lord Turnberg. Drugs have different effects on children. Surprisingly, adults are sometimes more sensitive to a drug than are children. A larger dose of belladonna is required for children.
	Once again I apologise for being late and I want to express my thanks to the noble Baroness, Lady Thomas of Walliswood, for this splendid report.

Lord Colwyn: My Lords, before the Minister replies, perhaps I may say that it would have been extremely useful to have been told that the noble Baroness, Lady Finlay, was not going to speak in the debate. When I rang the Whips' Office at 10 o'clock this morning while giving an anaesthetic in Harley Street, I was told that I had nine minutes in which to speak. When I spoke to my own Whips' Office this afternoon I was told that I had seven minutes, and when I came into the debate this evening I found that I had five minutes. But now the Minister has all of 20 minutes in which to reply, while I have had to cut major sections of my speech. It is very unsatisfactory.

Baroness Royall of Blaisdon: My Lords, perhaps I may respond to the noble Lord's point. As is normal in such circumstances, about two speakers were scratched before the noble Baroness herself was due to speak and the usual channels were informed. I am terribly sorry. In future I shall ensure that other noble Lords are informed, but we were not told that the noble Baroness had been scratched until after the noble Lord had himself spoken in the debate.

Baroness Finlay of Llandaff: My Lords, perhaps I may speak very briefly. I was stuck on the M4 because of a four-car accident, but I tried to get here as fast as I could. I ran up the stairs to join the debate, but realised that it would have been impolite to speak.
	Perhaps I may take a moment to address the differences in neonates at term and the even greater differences in preterm neonates. I hope that the Minister will tell us how he intends to inform the public that the culture of research needs to change so that people understand that there are good outcomes from good research and that everyone benefits.

Lord Warner: My Lords, noble Lords will be pleased to know that I am not going to speak for 20 minutes; even I recognise that you can have too much of a good thing. I am pleased to have the opportunity to set out the Government's views on the new European regulation on medicinal products for paediatric use which comes into force later this year. I am grateful, as are other noble Lords, to the noble Baroness, Lady Thomas of Walliswood, for her sub-committee's report and the opportunity she has provided for noble Lords to discuss this important issue. I certainly have a personal interest in the subject; it is one I have had for some time.
	I should like to make it clear at the outset that the Government have been supportive of legislation in this area for a number of years and welcome the efforts made by the Commission to progress this regulation. It was a key priority during the UK presidency last year and I am pleased that political agreement was achieved during our presidency. The Government have been concerned for many years about the lack of medicines authorised and formulated specifically for paediatric use for the reasons mentioned by a number of noble Lords this evening. Because of our concerns, we took steps at the national level within the existing regulatory framework: first, to produce in the short to medium term an increase in appropriately labelled and formulated medicines for children; and, secondly, to increase information on the paediatric use of medicines for prescribers, carers and patients through the children's British National Formulary. I should add that this is probably one of the most useful things I have done as a Minister. There may not have been many of them, but the BNF was one of them. Thirdly, we have ensured that appropriate standards are met for the conduct of clinical trials of medicines involving children.
	However, the Government have always considered that a pan-European legislative solution was required to address the current situation. The regulation responds positively to concerns expressed by all member states, including the UK. We were not alone in wanting to address this issue. We recognised the need for a regulatory approach that includes both incentives and requirements to ensure that new medicines along with medicines already on the market meet the specific needs of the paediatric population while also ensuring that children are not subjectedto unnecessary clinical trials or delaying the authorisation of medicines for adults. That second issue has been around for some time and has had to be addressed and dealt with. I am very pleased to report that a Second Reading agreement was reached on the regulation in the European Parliament on 1 June 2006. This means that the regulation will come into force later this year.
	One important outcome of the regulation—indeed, one of its objectives—will be an increase in the number of clinical trials in children. Some people, understandably, have expressed concerns about involving children in clinical trials. But let us be clear: if a medicine is to be used in children, the only way of determining whether it will be beneficial and safe is by conducting clinical trials in children, as my noble friend Lord Turnberg so clearly expounded. These trials in children will make an important contribution to public health by providing the scientific base for authorising new essential medicines, particularly for inadequately treated diseases. Equally important, the trials will provide information on when not to use medicines in children, and why.
	In recognition of the importance of clinical trials in children, the Government launched the Medicines for Children Research Network last year to provide a world-class health service infrastructure to support high-quality trials of medicines for children. We want to do this job well and that is why we have involved the experts in this network.
	A number of noble Lords have raised issues around the ethical considerations. Involving children in clinical trials clearly raises a number of ethical issues. I should like to emphasise that the Government attach the greatest importance to ethical standards, an area which I know is of particular interest to the House not only in this debate but more generally. The rules governing the conduct of clinical trials are both detailed and specific. The paediatric regulation contains a range of measures specifically to safeguard those participating in paediatric clinical trials. These are over and above the high standards introduced by the clinical trials directive to protect minors. The directive requires that ethical and procedural criteria specific to children are in place before entering them into a trial.
	The Government believe that the protection of those participating in clinical trials must be the overriding priority and believe that the safeguards laid down in the clinical trials directive and the measures in the new regulation provide a secure framework to ensure that the health, welfare and rights of children participating in clinical trials are protected. I reassure the noble Lord, Lord Trefgarne, that the clinical trial on a minor may be undertaken only if—and I give one example—the informed consent of the parents or legal representative has been obtained. Consent must represent the minor's presumed will and may be revoked at any time without detriment to the minor. The explicit wish of a minor who is capable of forming an opinion and assessing this information to refuse participation or to be withdrawn from the clinical trial at any time is considered by the investigator. That is already provided for. I rather share the views quoted bythe noble Baroness, Lady Neuberger, of Cyril Chantler—to whom a number of noble Lords have paid tribute today and who has probably seen more children undergoing great suffering than any of us. I rather share his view that with appropriate creativity and patience we can secure informed consent from many more children than has often been the case. Certainly the clinical trials directive does nothing—quite the opposite—to ensure that we work hard at securing children's consent in these often very difficult sets of circumstances.
	Perhaps I may reassure the House that, in addition, the European Commission, in consultation with member states, is preparing a guideline on the ethics of conducting clinical trials in children. The commission intends to publish the draft guidance in the autumn for consultation before it is finalised and in place when the new regulation on medicines for paediatric use comes into force.
	This guideline, along with others that are being developed, will be important in setting out how the regulation will work in practice. I will mention the other guidelines later, but I can reassure the House unequivocally that the Government would not have supported a proposal with implications for conducting clinical trials in children if we were not absolutely convinced from all the expert advice we have received that this was the right thing to do.
	A number of noble Lords mentioned incentives. The proposed incentives under the regulation stimulated much debate in Europe, but most people accept that incentives are necessary. The Government carefully considered the implications of the proposed incentives and agree that it is important to provide fair incentives to the research-based pharmaceutical industry to stimulate the necessary research. It was clear from the range in the commission's impact assessment of the regulation and the Government's partial regulatory impact assessment that it was not possible accurately to estimate the impact on the NHS at the present time. Because of this uncertainty, the Government felt it was important to make the case for a robust review of the economic and health benefits of the regulation, and this was agreed.
	The European Commission will provide a general report within six years of the regulation entering into force. That will include a detailed inventory of all medicinal products authorised for paediatric use under the regulation and, if sufficient data have accrued, the commission will provide a report on the economic impact of the rewards and incentives along with an analysis of the estimated consequences for public health. If the data are insufficient to allow a robust economic and public health impact assessment at this stage there is the possibility of conducting a further review within 10 years of the regulation entering into force.
	I can assure the House that the Department of Health will monitor the impact of the incentives. As set out in our response to the scrutiny committee's report, we will also update the regulatory impact assessment once the data are available, and make this information available to the committee. I can certainly give the noble Baroness, Lady Thomas, the reassurance that she was seeking. I can also reassure her that we now accept that Article 95 of the treaty is an appropriate legal basis for the regulation.
	As I mentioned earlier, specific guidance will be developed to underpin the regulation in a number of areas including, for example, the rules of procedure for the paediatric committee and guidance on the required format and content of an application for agreement of a paediatric investigation plan. The European Commission will have responsibility for developing the guidelines in consultation with the member states. Let me reassure my noble friend Lord Turnberg that the Government will ensure that all stakeholders, including healthcare professionals, parents, patient organisations and the pharmaceutical industry are able to provide input at the appropriate stages.
	The UK led the development of European guidance on the conduct of pharmacovigilance in children. This was recently finalised following a period of public consultation and underpins the strengthened requirements for paediatric pharmacovigilance which are set out in the regulation and will reinforce the use of medicines in children.
	The House will be aware of the extensive consultation on the regulation that was conducted by the European Commission, the Department of Health and the MHRA—the Medicines and Healthcare products Regulatory Agency. Consultation responses, including those from paediatricians and other healthcare professionals, indicated strong support for the new legislative framework. The Select Committee's own inquiry and report on the regulation welcomed the proposed legislative framework. I cannot answer the question of the noble Baroness, Lady Howarth, on the cardiac working party, but I will certainly write to her.
	In conclusion, I believe the proposal strikes the right balance between protecting public health through the development of properly tested and formulated medicines for children and assuring high-quality paediatric clinical trials in the UK. The proposal is long awaited, and we are pleased that the new regulation will become a reality in the very near future.

Lord Trefgarne: My Lords, before the noble Lord finally sits down, I should like to add my appreciation of the work of the Clerk to the Committee, Mr Gordon Baker, which I omitted to do during my earlier remarks.

Baroness Royall of Blaisdon: My Lords, I beg to move that the House do now adjourn during pleasure until 8.55 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.50 to 8.55 pm.]

Legislative and Regulatory Reform Bill

House again in Committee on Clause 1.
	[Amendment No. 16 not moved.]

Lord Goodhart: moved Amendment No. 17:
	Page 2, line 4, leave out subsection (5).

Lord Goodhart: Amendment No. 17 stands in my name and that of my noble friend Lord Maclennan. I am glad that we have not had another debate about your Lordships' House going into Committee and that we can get straight on with this.
	Clause 1(5) states:
	"For the purposes of subsection (2), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand)".
	When law is difficult to understand is an uncertain question, but, in any event, this subsection should be left out. Its intent seems to be to revise legislation so that it is easier to understand. Of course, all of us say, "And a good thing, too". However, if one looks into this a bit more deeply, one will find, first, that the main problem with understanding legislation is not the difficulty in understanding the words, but the difficulty in finding out what and where the relevant legislation is. There is an endless scattering of provisions among a number of different statutes. Some of the provisions are incorporated as amendments into the original legislation; others are free-standing and not part of the original legislation. Putting statutes in their current form on to an internet database that is accessible to the public would do far more than anything that this Bill authorises to make it easier for people to find out what the law is—so would more frequent consolidation Bills, which already have a simple procedure, as we have seen in the case of a couple of consolidation Bills with which your Lordships' House is now dealing.
	It is easy to say that existing provisions can be rewritten to make the law simpler and more accessible. That can be done. An example is the tax law rewrite programme—I have been involved with that for some years now. The tax law rewrite Bills go through the ordinary Bill procedure nominally, but they have the consent of all parties and are enacted after very brief debates.
	However, my experience with the tax law rewrite programme shows that it is extremely difficult to rewrite legislation without to some extent changing it. In fact, many minor changes to the law have been incorporated in the tax law rewrite Bills, which are supported by detailed notes that explain what the changes are; if there is any significant change, it cannot be included. The orders that are to be made under this Bill are unlikely to have anything like such detailed notes and, further, they will probably be drafted by the departmental lawyers and not by the extremely able and highly specialised Parliamentary Counsel Office.
	One might also ask why it is that legislation is so difficult to understand. If it is difficult for lay people but not for lawyers, that is because of the use of technical language, excessive cross-referencing—so you have to chase up the cross-reference in different legislation—and so on. All those things make it difficult for lay people to follow, but they do not mean that the legislation itself is ambiguous or uncertain. The problem is that, with these technical Bills, which are sometimes drafted in old-fashioned language, you cannot put new wine into old bottles; you have to use consistent language throughout any particular area of legislation. That is why the tax law rewrite programmes have rewritten whole sections of the tax law. You have to use consistent language throughout, and the law needs a full rewrite.
	If the problem is that it is difficult for lawyers to understand what the legislation means, that is almost inevitably because the legislation has been badly drafted or has failed to take into account what might happen in future, with the result that the legislation is uncertain and ambiguous and the courts have not solved the problem by giving a ruling on what it actually means. In those circumstances, I believe that solving the uncertainty or ambiguity is in practice really making new law, because what you are doing is converting something that has two possible meanings into something that has only one of those meanings.
	This provision has nothing to do with deregulation; it is simply making the case for better drafting, and so should not be in this Bill. It is entirely different from the kind of deregulation that is clearly intended to be here. A considerable burden rests on the Government to establish a justification for this provision in the Bill. I beg to move.

Lord Jenkin of Roding: My Amendment No. 18 is grouped with the amendment that the noble Lord, Lord Goodhart, has spoken to. The noble Lord has far more expertise in this field than I could ever muster. I was brought up to believe that there could be no better Act of Parliament than the Sale of Goods Act 1893, which is completely clear, is totally understandable by everybody and has stood the test of time. Would that there were more legislation like that these days—but sadly, as the noble Lord has reminded us, that is not the case.
	On the whole, I would not wish to remove the whole subsection, despite the strong arguments that the noble Lord has advanced. It seems to me that it should be possible to use the order-making power under this Bill to make sense of, and to reconcile, what might be a number of different statutory provisions without significantly altering their sense. I understand entirely the problem of rewriting Bills that may have been acted on, have had judicial interpretation and have stood the test of time, obscure though they may be. Nevertheless, in the interests of keeping the law up to date, this is a perfectly proper thing to do.
	I take issue with the last few words of Clause 1(5),
	"(for example, where the legislation is hard to understand)".
	With the greatest respect, I do not see that that adds anything of value to the preceding words. All the preceding words are saying is that,
	"a financial cost or administrative inconvenience may result from the form of any legislation".
	Adding the words in parenthesis makes the subsection more obscure.
	The courts may well have understood the measure in the past and, as has been said, have given their interpretation of it, and parties up and down the country may have acted on that interpretation. If one is arguing that the measure should be changed on the ground that lay people find the law difficult to understand, one will run into difficulties. I would not vote against the noble Lord's amendment, which seeks to remove the subsection. If the Committee takes that view, I would certainly agree with it. But if the subsection is to remain in the Bill—I suspect that the Minister will argue that it should—I would argue very strongly that the words,
	"(for example, where the legislation is hard to understand)",
	should be deleted. They add a note of informality that is inappropriate in legislation of this kind. If I may say so, it is a bad example and would be better left out.

Lord Norton of Louth: I rise to reinforce the point made by my noble friend and to express sympathy with the argument advanced by the noble Lord, Lord Goodhart, of which I see the force. However, I agree with my noble friend Lord Jenkin about the words in parenthesis in particular, as they confuse the picture. My noble friend's argument is that saying legislation is hard to understand renders the subsection itself hard to understand. But I am concerned about who finds it hard to understand. The relevant words may inject almost an element of mischief by inciting people to claim that something is difficult to understand as a way of avoiding a burden that may be placed on them. The measure creates more problems than it solves. Certainly, the words in parenthesis should come out, but I agree with my noble friend Lord Jenkin that not too much would be lost if the whole of subsection (5) came out of the clause.

Lord Borrie: I am an enthusiast for the Sale of Goods Act 1893 and its wonderful clarity, at least as much as the noble Lord, Lord Jenkin of Roding, is. I was a little puzzled by the argument advanced by the noble Lord, Lord Goodhart. I thought that he was saying that we did not need to worry about law that was hard to understand because there were other more important problems—for example, the proliferation of laws, the need for consolidation and other such matters.
	But if law is "hard to understand", to use the words in the Bill, that seems to me an example of administrative inconvenience that it might be desirable to change by regulatory order under the Bill. I understand Members of the Committee saying—I would join them—that there are other more important things to do, but the measure is concerned with getting rid of burdens and administrative inconveniences, and one example is given here. If Members of the Committee are saying that they do not like an example being given, and that that is unnecessary, it is rather like the argument advanced earlier by the noble Lord, Lord Peyton of Yeovil, in which he wanted to get rid of certain words because he thought that they were not essential. I refer to the words in the Bill following the word "sanction". But if it adds clarity, why get rid of the measure?

Lord Desai: I would say one small thing. I have been in your Lordships' House for 15 years and I have never yet understood a Bill on my first reading of it. I am not illiterate—I have many degrees—but it is very hard to understand laws. If I have difficulties, people who have to abide by those laws have lots of difficulties. We should do whatever we can do to reduce those difficulties.

Lord Norton of Louth: I will respond to both noble Lords. The logic of what the noble Lord, Lord Desai, has just said is that all legislation is a burden. That brings us back to the problems inherent in this Bill. Regarding the comments of the noble Lord, Lord Borrie, I thought that the argument was not that the words are superfluous, but that they might inject an element of ambiguity into the provision and that that was why they should be removed.

Lord Kingsland: I shall speak to Amendment No. 55 in this group. Amendments Nos. 67, 71 and 73 are consequential on that amendment.
	Amendment No. 55 reflects a recommendation of the Delegated Powers and Regulatory Reform Committee to remove subsections (3) to (5) of Clause 4. Those subsections exempt provisions that restate statute or which codify a rule of law from the protections contained in subsection (2). Subsection (5) of Clause 1 enables a power to be used to consolidate and rewrite primary legislation. So, subsections (3) to (5) of Clause 4 should be read with subsection (5) of Clause 1 in mind.
	I agree with everything said by the noble Lord, Lord Goodhart, in speaking to his Amendment No. 17. As the committee pointed out, the definition in subsection (5) of Clause 1 allows the power to be used for rewriting and consolidating primary legislation. In other words, it is a paving power. The question for the Committee is whether the order-making powers are appropriate for the consolidation of statutes.
	The Delegated Powers and Regulatory Reform Committee interprets "restates"—the word used in the Bill—as meaning "consolidation". The committee set out, in paragraph 66 of its report, how Parliament has already set up by statute and standing order fast-track mechanisms to deliver primary legislation for certain purposes, including consolidation. The committee cites, as an example, the Education Act 1996, which was passed in four minutes on the Floor of your Lordships' House and in one minute on the Floor of another place.
	The committee goes on to note:
	"That Parliament currently requires a bill for such restatement is significant in considering whether to delegate to Ministers the more substantial power to simplify the law".
	The point made by the committee is constitutional. It is saying that primary legislation, not secondary legislation introduced by an order made by Ministers, should be used to simplify the law.
	Government Amendment No. 61 attempts to redefine the meaning of "restates". It is helpful, in as much as it clarifies that restating an enactment relates only to matters of form and arrangement. But it still does not address the principle at stake here, that primary legislation is the appropriate way for legislation to be consolidated or rewritten. The fact that there are already adequate procedures in place to achieve that aim, coupled with the constitutional principle of the inappropriateness of attempting to use the order-making powers in this way, should, I hope, make the Government reconsider what they are trying to do with subsection (5) of Clause 1.

Lord Bassam of Brighton: I want to deal with the amendments as a group, but I shall deal with each in turn. Amendment No. 17 relates to the ability to consolidate legislation by order, but I shall turn to Amendments Nos. 67, 71 and 73, which relate to the provisions in Clauses 5, 6 and 7 for orders that restate legislation. I shall then turn to Amendment No. 55, and Amendment No. 61.
	Orders under Part 1 will be able to cut red tape by removing or reducing unnecessary burdens and ensuring that regulatory activities are exercised in a way that is proportionate, accountable, consistent, transparent and targeted in line with our policy. As well as providing that orders can remove or reduce burdens, such as financial costs or obstacles to productivity, Clause 1(5) makes it clear that orders could be used to consolidate or restate the law without changing its meaning, where to do so would itself be reducing or removing a burden. That might be where, for example, the legal rules on a particular subject were scattered through numerous pieces of legislation or where legislation was drafted in a way that was very inaccessible.
	Amendment No. 17 would remove Clause 1(5) and cast doubt over whether orders could be used to remove burdens resulting from the form of legislation. Amendment No. 18 would remove the words,
	"for example, where legislation is hard to understand".
	That would make it less clear what is meant by "a financial cost or administrative inconvenience resulting from the form of legislation" and may cast doubt over whether changes that make the law easier to understand can be delivered under Clause 1.
	I assure the Chamber that it is not the Government's intention to deliver orders that solely consolidate legislation—such measures would be more appropriately delivered by consolidation Bill procedures. By definition, orders could only consolidate or restate legislation where to do so was removing or reducing a burden relating to the form of the legislation. Indeed, consolidating legislation is recognised as a worthwhile form of simplification. The Better Regulation Task Force's 2005 report Regulation: Less is More emphasised the importance of simplification in terms of cutting red tape. The report identified consolidation as a key part of simplification. Consolidation involves bringing together different regulations into a more manageable form and restating the law more clearly.
	The beneficial effects of reducing burdens by consolidating or restating legislation might, for example, mean that small businesses did not need to resort to expensive lawyers to access or interpret the law: they might also improve compliance—for example, with health and safety regulations—as small businesses will find it easier to understand what is required of them.
	However, I note that the Delegated Powers and Regulatory Reform Committee recently questioned whether orders should be able to alter the law without changing its meaning. We believe that the power to consolidate legislation by order is a useful one.
	As was pointed out by the Delegated Powers Committee, there are fast-track Bill procedures for consolidation. I reiterate: it is not the Government's intention to deliver pure consolidation by order. I am happy to give an undertaking on behalf of the Government that orders under Clause 1 will only consolidate or restate legislation as part of wider reforms. That would mean that the ability to remove or reduce burdens in the form of a financial cost or administrative inconvenience resulting from the form of legislation would be exercised only when burdens that did not result only from the form of legislation were being removed or reduced.
	I accept that some noble Lords may have concerns that restatement or consolidation delivered by order is more vulnerable to being quashed by the courts in a judicial review than when that is done in a Bill. Perhaps they believe that this may cause problems for legal certainty or may change the standard roles of Parliament and the judiciary in relation to primary legislation. The issue is that primary legislation is not subject to judicial review, but secondary legislation—including secondary legislation that amends or repeals primary legislation, as with orders under this Bill—can be reviewed by the courts and quashed if it is found to be unlawful for some reason.
	Before making an order under Part 1 that restates provisions, the Minister must in any event consider that the restatement of the provisions would make the law more accessible or more easily understood.The Minister must give evidence for his opinion on both issues in the Explanatory Notes laid before Parliament and any impact assessment, if appropriate. The parliamentary committees will then come to a view on whether the criteria have been satisfied and may veto an order if they do not find convincing the evidence that the Minister provides. In acting on the issues, the Minister must be under a public law duty to act reasonably.
	It is also true that it is reasonably common for primary legislation to amend secondary legislation. That is done regularly, for example, through the useof powers under Section 2(2) of the European Communities Act 1972 when implementing Community obligations in domestic law. Some 29 regulatory reform orders have now been delivered under the 2001 Act, all amending primary legislation by secondary legislation, and none of them has been judicially reviewed. So I would argue that, to that extent, it has been a successful process. When it comes to reforming an entire regime by order, it may be efficient to consolidate or simplify legislation in the same order. I cannot support Amendment No. 17, as I believe that it would create an arbitrary limit, providing a disincentive for using the order-making powers for proposals that would sensibly include restatement or consolidation.
	Amendments Nos. 67, 71 and 73 would amend Clauses 5, 6 and 7 and could limit the Bill's ability to restate legislation. I emphasise that in this case we may well be dealing with the restatement of individual provisions rather than wide-scale consolidation.
	Amendment No. 67 would remove an exemption with the effect that, if an order restated provisions that conferred a power to legislate on a Minister, it would have to require the power to be exercised by the making of a statutory instrument subject to the negative or affirmative procedure. Where currently there is a power for a Minister to make a statutory instrument that has to be laid before Parliament but is not subject to negative or affirmative resolution procedures or does not have to be laid before Parliament at all, the mere fact that the provisions were being restated but not changed in any way by an order would mean that in future they would have to be subject to negative or affirmative resolution procedures.
	Amendment No. 67 could therefore make the process for exercising powers to legislate in the future far more onerous, even though the powers themselves were not being changed by the order. That could prove a disincentive for using the order-making powers, particularly for large reforms, which are more likely to already include powers to legislate.
	Amendment No. 71 would remove the provision that orders may not impose or increase taxation. Clause 6(2) provides that the restrictions do not apply to provisions that merely restate existing taxation. The amendment would have the effect that it might not be possible to restate any provisions that in themselves imposed or increased taxation. I should make it clear that the Government have no intention of replacing their successful Tax Law Rewrite Project with reforms delivered by order, but the effect of the amendment would be that orders might restrict the useful provision that orders could make in the area of taxation, even where no changes were being made to the substance of the provisions.
	Therefore, I cannot support Amendments Nos. 67, 71 and 73, as they would limit the ability of orders to restate legislation without changing its meaning, which may be worthwhile including in a wider package of reform to be delivered by order, as is obviously the case with the now oft-quoted Fire Safety Regulatory Reform Order.
	Amendment No. 55 relates to orders that restate legislation and to those that codify the common law—that is, orders that put rules of the common law provisions on to a statutory footing without changing their meaning. The Government have tabled amendments removing the power to codify the common law, consequential on our amendments to remove Clause 3, which provided a power to implement Law Commission recommendations.
	Clause 4 sets out preconditions that orders must satisfy. The preconditions in Clause 4(2), which safeguard such things as necessary protections, do not apply to orders that only restate enactments or codify the common law. That is because, when making the legislation containing the provisions that are to be restated, Parliament will already have decided that they are desirable. Where orders simply move the provisions from one piece of legislation into an order without changing their meaning, it does not seem appropriate for orders to open up a debate on the principle behind provisions that have already been agreed by both Houses and which the Government are not attempting to change.
	However, a different precondition applies to orders that restate enactments or codify the common law. The restatement of the provisions must make the law more accessible or easily understood. We argue that this is a useful precondition on the use of the power to restate the law, as it ensures that restatements will be made only when they will have genuine better-regulation benefits.
	Amendment No. 55 would remove that separate precondition and would provide that allorders, even those merely restating or codifying the law, must meet the preconditions in Clause 4(2). This forms part of one of the recommendations of the recent DPRRC report, but the DPRRC's recommendation seemed to be based on the fact that it believed that orders should not be able to consolidate or restate the law, which would be the effect of Amendment No. 17—I have already discussed this amendment. If the power to consolidate was removed, the DPRRC rightly believes that there would be no need for a separate precondition covering orders that restated the law.
	There may be two concerns underlying the amendment. The first might be that subsections (3), (4) and (5) of Clause 4 could be used to avoid orders having to meet the preconditions in Clause 4(2). That is not the case. The definition of restatement in the Bill is replacing provisions with alterations only of form or arrangement, which does not include removing an ambiguity or making an alteration other than one of form or arrangement. If any substantial change were being made, it would not be a restatement, and the other five preconditions would apply instead. AmendmentNo. 61 is a minor drafting amendment, which moves the definition of restatement from Clause 22, which the Government seek to remove, to Clause 4 which, in view of the change, is a more logical place for it to rest.
	The other concern may be that orders could be used to restate existing provisions that themselves might not satisfy the preconditions in Clause 4 that rights and freedoms and necessary protections, and so on, must be maintained. It is my view that, if Parliament has already agreed to such provisions, it is right that orders should be able merely to restate the provisions without changing their meaning.
	Amendment No. 55 would merely make the process of making orders that do not seek to change the meaning of existing provisions more laborious. Departments would have another range of processes to go through, providing a disincentive for the use of the order-making powers and slowing down the delivery of regulatory reform by order. Amendment No. 55 would mean that departments would have to justify how provisions restating the law met the tests in Clause 4(2), rather than the more relevant test in Clause 4(5) that orders can restate the law only where to do so would make the law more accessible or more easily understood. Amendment No. 55 would, therefore, have the disadvantage of hindering the delivery of better regulation and would bring little, if any, benefit.
	For those reasons, I ask noble Lords to consider carefully Amendments Nos. 17, 18, 55, 67, 71 and 73, and, for the purpose of good order in the Bill, I commend Amendment No. 61 to the Committee.

Lord Jenkin of Roding: Does the Minister have anything to say about Amendment No. 18, dealing with the last few words of the subsection?

Lord Bassam of Brighton: I thought that I had addressed Amendment No. 18. I take the rebuke of the noble Lord seriously. I shall find my notes and see what more I can add on that issue.
	As I understood it, the amendment would delete the elucidation on consolidation in Clause 1(5). Amendment No. 18 would remove the words,
	"for example, where legislation is hard to understand".
	That is intended to be a helpful explanation of what is meant by a burden arising from the form of legislation. We argue that the effect would be to make it less clear what is meant by financial cost or administrative inconvenience resulting from the form of legislation. I think that I argued earlier that we thought that that would cast unnecessary doubt over what types of changes to legislation could be made that would remove or reduce burdens. I apologise for an element of repetition there. That is the explanation.

Lord Goodhart: I entirely agree with the noble Lord, Lord Jenkin, that the Sale of Goods Act 1893 is a masterpiece of parliamentary draftsmanship. There was a golden period of parliamentary draftsmanship, which ran roughly from about the late 1880s until the First World War, when the parliamentary draftsmen were brilliant at producing quite simple, easily understandable Bills, dealing with issues like the sale of goods and the Partnership Act 1890, which was extremely clear and, effectively, lasted for over a century.
	To get a bit closer to business, I must say that I was grateful to the noble Lord, Lord Kingsland, for his support of my amendment. I return the compliment by expressing support for his.
	We are ending up in a thoroughly untidy situation here. It is increasingly clear that Clause 1(5) and subsections (3) and (5) of Clause 4 are themselves hard to understand. If they go into the Act, as it will become, they may well be prime targets for the necessary orders.
	The position on consolidation is extremely complex. We all agree that consolidation enormously helps lawyers and lay people to understand what the law is. We have a situation where, if it is pure consolidation, you must have a consolidation Bill because the definition of "restatement" makes it clear that you cannot restate legislation unless it does more than merely restating it. If you are consolidating with a few changes, you can use a restatement procedure. You cannot consolidate with more substantial changes because you are doing something more than restating the law. We are getting into a great state of confusion.
	There are undoubtedly serious problems with the provisions that this group of amendments looks at. I intend to take this away, and I expect that we shall come back; not necessarily with Amendment No. 17 in its present form, although I would not rule that out. Alternatively, we will come back with something else, taking into account the nature of tonight's debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 18 not moved.]

Baroness Wilcox: moved Amendment No. 19:
	Page 2, line 6, at end insert—
	"( ) For the purposes of subsection (2), where a Minister of the Crown considers that a rule or regulation is causing a burden or burdens on the ground that it is hard to understand, he must lay an order within no more than three months revoking or clarifying that rule or regulation."

Baroness Wilcox: The amendment will bring an impetus to the deregulatory process, imposing a duty on a Minister to initiate the order-making process within three months when he or she considers that a regulation is causing difficulties through its complexity or confusing language. It will toughen up the process.
	There is nothing in the Bill that forces a Minister to get a move on and drive his department forward in getting regulations removed or clarified. I can see procrastination creeping in at every stage of the process. We need a firm commitment in the Bill to swift and aggressive deregulation. It is no use having the means to get burdens removed but no means to get the Minister to go ahead with the process. I beg to move.

Lord Jenkin of Roding: My noble friend has approached the problem from a different angle from that which we have done thus far. Generally, the burden of the cases made has been whether this is appropriate to an order-making power or should be left to full-scale legislation. But I have also been considering that, so far as I can see, the Bill lacks any procedure to oblige Ministers to deregulate. I wonder whether we ought seriously to consider that. My noble friend's amendment is limited to where the burden arises because the legislation is hard to understand, but there surely ought to be some procedure whereby a citizen or firm that is aggrieved by the failure of a Government to deregulate can do something about it. We have lots of procedures to stop a Government using the powers in the Bill for improper purposes, and we must welcome them, but where in the Bill is there a procedure that a citizen could use to draw attention to a case that could benefit from deregulation in any of the forms that the Minister has described and to ask the Government to deregulate? At the moment, all a citizen can do is write to his Member of Parliament, who may be persuaded to raise the matter by Question. There is no legal procedure whereby a citizen can oblige the Minister to deregulate and, if there is a dispute, to have it determined in some appropriate way. The Committee ought to return to this; in the mean time, my noble friend has offered a valuable road ahead.

Lord Maclennan of Rogart: While I have considerable sympathy with what I take to be the purpose of this amendment, I do not think it has solved the conundrum to which the noble Lord, Lord Jenkin, referred. The amendment does not effectively impose any enforceable obligation to act. It requires the Minister to,
	"lay an order within no more than three months",
	but does not tie that obligation to any period in time. It would be open to the Minister to say that he had not observed any difficulty or burden and thus avoid the obligation. It is helpful to have identified the problem, but we need to consider this further.

Lord Desai: Those of us who read the report of the Delegated Powers and Regulatory Reform Committee will remember that the problem is not that Ministers have not been eager to have regulatory reform but that the consultation procedures that the 2001 Act requires slow things down. The problem is not hurrying Ministers on but is getting clarity in the legislation so that the little things that the Minister wants to carry out do not take 1,900 days, as the abolition of the beet-sugar research corporation did. I sat in the committee and considered this reform and the problem is never the Minister's eagerness but that we have created a structure that is extremely hard to dismantle.

The Earl of Onslow: I hope that the Government are not in effect building an extremely nice car and keeping it in the garage. The aim, with which nobody disagrees, is to push for deregulation and there must be something other than ministerial good intentions to make sure that it happens. I completely agree with the noble Lord, Lord Desai, that deregulation is hard because of old working habits, Civil Service inertia and ministerial inertia. All those problems are completely foreseeable. I should think that the Minister has experienced them in detail, and frequently. Somehow we should get this Bill right and not allow Ministers too much power. They should do what they have to do quickly and well, and provision should be built into the Act that they have to do it. I do not say that this is necessarily the ideal way of doing it but the principle and the thought behind the amendment are completely right.

Lord Neill of Bladen: I hope that the Government will consider favourably the idea underlying this. I can see that there is a problem with the exact language adopted. It appears to refer to cases where a Minister of the Crown considers that a rule is causing a burden and so on. Ministerial indolence will be a complete answer to that. Ministers form no view whatever. So, as drafted, the provision allows for a very indolent ministerial reaction. Could not the Government find favour with the idea of putting some energy into the Bill at this point, and could they—no doubt in collaboration with the other side—produce a text to provide what many of us want?

Lord Bassam of Brighton: In a way, I am delighted that the noble Baroness has moved this amendment because it tells me that certainly part of the Chamber—and that has been echoed in the past few minutes—is keen to see deregulation and the use of this order-making process actually happen. My noble friend Lord Desai put his finger on the point by saying that it was not due to ministerial inertia that the 1994 Act did not do the business—I have no doubt that it was the same when the Conservatives were in government—but it is because the procedures binding the order-making procedure have so inhibited Ministers that we have not been able to make better use of the 2001 Act.
	I agree with what the noble Lord, Lord Neill of Bladen, and the noble Earl, Lord Onslow, say about how this proposal would work. I am not sure that it is necessarily the right approach. The Minister may not want to use the order-making process to deregulate; it may be better to put it in primary legislation or deal with it in guidance. To try to impose a three-month timetable could end up being counterproductive. I certainly like the enthusiastic spirit behind the amendment.
	I am not going to give a commitment that we will come back with something similar. I certainly want to reflect on the argument because it is undoubtedly of value. I am grateful to the party opposite for beginning fully to engage with what we are trying to achieve. In those terms I have to say that I reject the amendment because I do not think that it will achieve what it seeks.
	There are mechanisms for the public to propose regulatory simplification, as I explained, through the portal process, which has had a measure of success to date. We are committed to responding to those proposals within 90 days. That mechanism has worked quite well. But I like the spirit behind the amendment. I will reflect on whether there is some merit in it. I doubt whether I shall table an amendment that moves it forward in the way the noble Baroness seeks. I do not think it would work as she would like, and in some senses it would be counterproductive, particularly where there are other mechanisms for achieving what the noble Baroness seeks to do through the amendment.

Baroness Wilcox: I went from hot to cold and cold to hot there. I listened to what the Minister said. At first I thought that he was not going to accept this at all. I listened to the noble Lord, Lord Desai, and then to the Minister. What they were saying was the opposite of what the noble Lord, Lord Dahrendorf, said in his report. He said that it is not the parliamentary procedure but the lack of political will for a Minister to drive deregulation programmes through, which makes it unsuccessful. So in actual fact the noble Lord was not in agreement with either noble Lord.
	I am sorry that the noble Lord, Lord Neill of Bladen, did not like my wording, because I know him to be a distinguished lawyer. I hope that we will be able to come up with acceptable wording. At least this is the first amendment tonight on which we have moved anywhere, so I am grateful for that. At this stage, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Geddes: Before I call Amendment No. 20, I must advise the Committee that if it is agreed to, I shall not be able to call Amendments Nos. 21 or 23 due to pre-emption.

Lord Bassam of Brighton: moved Amendment No. 20:
	Page 2, line 18, leave out paragraphs (a) to (c) and insert-
	"(a) provision abolishing, conferring or transferring, or providing for the delegation of, functions of any description, (b) provision creating or abolishing a body or office,"

Lord Bassam of Brighton: This is a complex group of amendments, including both government and opposition amendments. For that reason, I think that I had best address our amendments and then work at some pace through the others in the group. Amendments Nos. 65 and 66 and 68 and 69 concern the power to confer legislativefunctions by order. The ability to confer the function of legislating is important so that orders can be more easily designed to deliver large-scale reforms to entire regimes.
	A function of legislating, as the Bill specifies, means to legislate by order, rules, regulations or other subordinate instrument. Bills of an equivalent size often include powers to make secondary legislation, since it is usually not appropriate or necessary for all the detail of a statutory regime to be set out in primary legislation, or because some aspects of a statutory regime may need subsequent amending or updating.
	We welcome the conclusions of the Delegated Powers and Regulatory Reform Committee, which stated that including in the Bill a power to confer legislative functions by order to Ministers and other suitable bodies is not inappropriate. The committee evidently has a lot of expertise in this area and we are very grateful for its support.
	Amendment No. 65 restricts the persons or bodies eligible for such powers to three categories. The first is Ministers—the category of persons most likely to be given powers to legislate as part of future orders. The second category is persons or bodies who have functions under an enactment. That will ensure that powers to legislate will be conferred only on persons or bodies already recognised by Parliament as suitable. The third category is a body, or the holder of an office, which has been created by the order itself. That power will be useful, for example, in the case of mergers, where the successful transfer of function may necessitate the creation of a new body.
	A minor amendment, Amendment No. 66, has been proposed by the Government to further clarify the parliamentary procedures that must apply to the exercise of legislative powers conferred on Ministers. We hope that that minor power will be seen as useful and valuable.
	We have also sought under Amendment No. 65 to respond to concerns surrounding the ability of bodies or officers who have been given legislative power by order further to delegate those powers to others. Evidently, that would be an inappropriate use of the power in the Bill and is something that the Government want to protect against. I have already stated that the Government's view is that it would not be possible further to delegate legislative powers conferred by order under the Bill; an express provision in the Bill would be needed in order to allow that. However, to put the issue beyond doubt, Amendment No. 65 explicitly prevents powers to legislate conferred by order being further delegated to someone else.
	The purpose of government Amendments Nos. 20 and 36 to 38 is to make clearer the types of provision that it is possible to make under Clauses 1 and 2. In general, they are drafting improvements which are not intended to change the scope of those powers. Amendment No. 20 re-organises and makes minor changes to some of the provisions in Clause 1(7) and in doing so makes it clearer that orders made under Clause 1 may contain provision abolishing, conferring, or providing for the delegation of functions of any description, and that they may create new bodies or offices.
	Amendments Nos. 36 to 38 similarly improve Clause 2 to make it clearer what can and cannot be done under the power. In particular, the amendments make it explicit that an order under Clause 2 cannot create or abolish any new regulatory function. Clause 2 is about affecting the way in which regulatory functions are exercised, not about changing those functions. The amendments clarify that it will be possible to create or abolish bodies only in the context of transferring regulatory functions to new bodies, and only then for the purpose of furthering the principles of better regulation set out in subsection (3).
	Amendments Nos. 68, 69, 86, 87 and 90 introduce minor drafting changes or consequential amendments to Clauses 5 and 15, and are considered necessary for the purposes of clarity. Amendment No. 68, for example, is purely consequential on Clause 5, which now contains an extra subsection. Amendment No. 69 simply moves the definition of "a function of legislating" from its previous position in Clause 22, as it is better placed in Clause 5. Amendment No. 90 ensures that this definition also applies to Clause 15. For these reasons, I commend the amendments to the Committee.
	I would rather address the other amendments in the group when I have heard the range of arguments from noble Lords opposite. I think that will probably be more helpful to the Committee. I beg to move.

Lord Kingsland: I shall speak to AmendmentsNos. 21, 22 and 23 in the group. We, on these Benches, are rather circumspect about the government amendments. The key government amendment is Amendment No. 65, which will insert new subsections (A1) and (A2) into Clause 5. New subsection (A1) limits the conferral or transfer of legislative functions to either a Minister or a person to whom functions are conferred or have been transferred by statute. The Government have therefore, apparently, limited the excessive sub-delegation of legislative functions originally proposed in the Bill. So far, so good. However, the Government have not gone far enough, in our view, to meet our concerns over this vital issue.
	New subsection (A1)(c) in Amendment No. 65 allows the Minister, through an order, to create a new body to which functions can be transferred or upon which functions can be conferred. In other words, the Minister may create a new body and simultaneously transfer or confer legislative functions on it. That makes new subsection (A2) rather meaningless, does it not? It is hard to see how establishing a new body and then conferring legislative functions on it is substantively different from delegating a legislative function to someone else.
	Amendments Nos. 22 and 23 give rise to a different issue. The Government have retained subsection (7)(d), which allows for provision to be made under Clause 1 to abolish a body or office established by or under an enactment. Amendment No. 22 leaves out this paragraph altogether—the most satisfactory solution. Amendment No. 23 expresses an alternative approach. A statutory body or office can be abolished only if its functions have been transferred elsewhere. The reason for the amendment is that, under the Bill, bodies or offices can be removed and their functions not replaced. I understand why these powers might be needed in Clause 2. Those powers relate only to regulatory functions, and concern the implementation of the Hampton mergers of regulators; but why do we need the power in Clause 1—a power that is open to abuse? To take an extreme example, on the current drafting, the new Supreme Court could be removed without its functions being replaced. I could cite further examples of bodies or offices that somewhere down the line impose a burden on others which might be removed under this order-making power. Please could the Minister kindly explain why such a broad power is needed? The power in Clause 1 should be limited to reorganisation and administrative changes, rather than the wholesale removal of statutory bodies and offices.
	In fact, the government amendments go further. They now allow for a provision that could abolish a body or an office that is not even statutory. That power already exists in Clause 2. But that is more acceptable because it relates solely to the exercise of regulatory functions. Clause 1 provides for an order-making power far wider than the Clause 2 power, and for no apparent reason.
	Finally, I would observe that new subsection (4)(b) to Clause 2 states that Clause 2 cannot be used to abolish any regulatory function. It seems extraordinary that, in a Bill which we all hoped to be deregulatory in purpose, the Government are, on the one hand, restricting the scope of provisions that promote sensible regulatory principles, yet, on the other, they are widening the scope of the orders under Clause 1.

Lord Norton of Louth: My Amendment No. 25in this group was prompted by the report fromthe Delegated Powers and Regulatory Reform Committee. It conceded that it did not regard sub-delegation as inappropriate, but at paragraph 35 it argued,
	"that the bill should specify the categories of person ...who, in addition to Ministers, could by order be empowered to legislate".
	My amendment was designed to address that. To some extent, it is now superseded by government Amendment No. 65, but my amendment would limit it to new subsection (A1)(a) and (b). I share my noble friend's concern about the inclusion of paragraph (c), which extends it to,
	"a body which, or the holder of an office which, is created by the order".
	To some extent that seems to get around the provision that we are seeking to limit. It seems almost to negate the purpose of bringing this provision forward. While I welcome the move forward that this represents in responding to the report of the Delegated Powers Committee, it would be better if subsection (A1)(c) was not included.

Lord Maclennan of Rogart: My Amendment No. 24, which is also in the name of my noble friend Lord Goodhart, may to some extent have been addressed by Amendment No. 65. However, I am bound to say that I am extremely concerned about the way in which we are legislating in these provisions. The Government published Explanatory Notes some time ago describing, for example, the effect of Clause 1(7). Before us, in government Amendment No. 20, we have provisions entirely different in formulation from those which their Explanatory Notes purport to describe.
	When matters of such complexity and opacity are brought forward, after the committees of this House and another place have considered them, it is not satisfactory that they are bounced on us as these have been today. It seemed to me clear that we ought to consider the limits of delegation systematically. That is not how this has been handled. We have a new provision which appears to recognise what I would have thought was a basic constitutional provision; namely, that only Ministers can introduce legislation to Parliament. That is confused in the original language of subsection (7), which did not confine legislation to activities which were the responsibility of Parliament. It is recognised in the definitions set out in subsection (6) that they might include,
	"rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to".
	If it is the Government's intention to clarify these matters for the benefit of the general public in the process of accelerating deregulation, I believe that they could have done a much better job with this series of amendments. Indeed, I am led to ask whether there is not some pretty profound defect in the Government's approach to the Bill. When there is such widespread agreement about the need for deregulation, I wonder—and I do so out loud—why we are being presented with these proposals in a semi-adversarial fashion when we could conceivably have instigated procedures under which the best minds could have been brought to bear. The task could even have been delegated to a body such as the Law Commission.
	It baffles me that we are sitting here at this hour of the night logic-chopping about the precise appropriateness of these complex subsections introduced by the Government at the last minute. Candidly, I do not feel sufficiently strongly that Amendment No. 24 is necessary in the light of what the Government have tabled at broadly the same time to commend it as a better enunciation of the principle of the limits to delegation—but that there should be limits to delegation seems clear, and they certainly were not clear as defined in the original Bill. The most appropriate response to what we are faced with tonight is that of caveat emptor: let us consider carefully and in the round what the Government have brought forward before we commit ourselves. I say that particularly noting that although the noble Lord, Lord Bassam, has attempted to explain on behalf of the Government what the effect is, and has done so perfectly reasonably if in a semi-abstract fashion, how are these provisions,
	"abolishing, conferring or transferring, or providing for the delegation of, functions of any description",
	intended to be used? It is an extraordinarily wide statement which obviously includes the function of legislation. I look forward to hearing of some practical examples and I hope that the Minister will think it worthwhile to communicate with those of us interested in the Bill and keen to see it work effectively.

Lord Jenkin of Roding: I have anxieties about one of the government amendments, Amendment No. 38 which, as the Minister described it, refers to the ability,
	"to create a new body to which, or a new office to the holder of which, regulatory functions are transferred ... to abolish a body from which",
	et cetera. I shall give an example. When we were debating the Human Tissue Bill a couple of years ago, which resulted in the creation of the Human Tissue Authority—certainly a regulatory body with powers to make regulations—it came out almost by accident that in the Government's cull of non-departmental public bodies, the department had it in mind to merge the roles of the Human Tissue Authority with the Human Fertilisation and Embryology Authority. The result in the Committee—I do not think the patronage secretary was there at the time—was that the very experienced and knowledgeable medical Members who sit in many parts of this House were immediately alerted and outraged. They said—and I joined in the debate because, as a former Secretary of State for Health, perhaps I had some standing—that these were two entirely different bodies and it would be absurd to merge their functions into a single body.
	The Minister in charge of the Bill, the noble Lord, Lord Warner, was immediately aware that he had trodden on a snake in the long grass and hastened to assure the Committee that no such merger could possibly take place without primary legislation. So we subsided and said that that would be an opportunity to lay to rest what was seen by many of us as an absurd proposal. One has only to think for a moment to realise that they are two entirely different bodies with entirely different functions.
	After reading government Amendment No. 38, and in particular subsection (4A)(a) and (b), it seems to me clear beyond peradventure that, if it goes into the Bill in this form, the Government could achieve their aim of merging those two regulatory bodies into one by transferring the functions of both to a new body and then abolishing the old ones. I do not expect the Minister to be fully au fait with the intricacies of what was discussed in the Human Tissue Bill—now the Human Tissue Act—but it is a concrete example of what appears to be the possibility that is opened under this new clause and that ought not to be opened at all.
	I hope the Minister will be able to give us some reassuring words that he will be able to consult his colleagues and say, "Of course, this will not happen". If necessary, we can look for amendments at a later stage which would make it perfectly clear that that, or anything like it, would require primary legislation and could not be achieved by an order under this Bill.

Lord Bassam of Brighton: I am grateful to noble Lords for their contributions to the debate on the further group of amendments and for their points on the amendments that I moved earlier. I intend to take the groups of amendments in order and deal with the points that have been raised. I am grateful, too, to the noble Lord, Lord Maclennan, for his constructive comments on the government amendments. In his comments and commentary he raised some valuable and valid points about process and I shall make one or two observations about that.
	Perhaps I may deal first with the amendments in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Wilcox. Amendment No. 21 seeks to prevent orders conferring powers to legislate entirely. The Government consider that this would create an unacceptable arrangement for this reason: it would impose an unnecessary restriction on the order-making power and reproduce almost precisely one of the barriers to successful regulatory reform under the 2001 Act.
	It has seemed to me during the course of today's debates that there is a fair measure of agreement about the need to regulate, but when it comes down to a particular proposal there is always another argument against it which in itself could create yet another tier of considerations before we finally get round to doing some deregulation. I am anxious to avoid that, but I think this amendment falls into that category.
	Let me give two examples of how the amendment might have held up, or contributed to holding up, beneficial changes. The inability to confer legislative functions by order under the 2001 Act led to a number of sensible proposed orders being dropped or modified. I have already quoted the fire safety regulatory removal order, as it were, and I shall quote it again now. Under that order we could not widen the existing powers to make regulations relating to fire safety to include risk assessment. I was being urged earlier to include risk assessment on the face of the Bill, and I gave good reasons why we could not do that. We could not put a provision regarding risk assessment into that order; and so, if we go back to the 2001 Act principles, as this amendment suggests, that is something that we would not be able to do.
	The second example is that a proposal to givethe Secretary of State powers to make statutory instruments to determine the functions of a new public health agency could not be delivered by a regulatory reform order. In many instances, I am sure that that would be uncontroversial and that Members of your Lordships' House and another place would find it entirely agreeable. But we could not do that under the 2001 Act. There is a good case for being able to do it because, in many instances, it would be an uncontroversial and sensible step forward. I hope that Members of the Committee will give some thought to those examples.
	Amendment No. 22 would prevent orders abolishing bodies or offices established by enactment. I hope that Members of the Committee have had the opportunity to consider points raised concerning the potential of the Bill to deliver mergers of regulators to ease burdens on the regulated sector and to take forward a regulatory environment characterised by the proportionate, risk-based and targeted regulation and inspection process that most of us see as a form of enlightenment. The provision which it is proposed to remove is, in our case, essential to realising those goals; for that reason, I cannot support it.
	Amendment No. 23 introduces what seems to be a less restrictive formulation, but it seeks to provide that an order can contain provision to abolish a body or office only if it also provides that the functions of those bodies are transferred to another person. I have sympathy with that amendment which, in principle, corresponds with the purposes of the provisions in the Bill. However, I also have reservations about the practical effect of the amendment. The abolition and creation of a regulatory body would clearly necessitate the transferral of regulatory functions. However, the very rationale for undertaking such a merger may be not only to transfer existing functions but to modify, create or abolish certain functions to reduce or remove burdens on the regulated. The amendment would mean that there was doubt as to whether such changes could be made to functions. In this way, the amendment could ultimately negate the value of the Bill as a vehicle for delivering beneficial mergers of regulators. It also seems somewhat unnecessary to petition for the restriction or removal of this provision. I hope that Members of the Committee will take assurance that the safeguards in the Bill, as we have discussed them, will always prevent the inappropriate usage of that power.
	The noble Lord, Lord Kingsland, made a couple of important points, in particular about the provision that he said would allow Government to create a new body and then give it legislative functions. There needs to be a provision to allow bodies to be created and have legislative powers conferred on them to allow for the implementation of some mergers of regulators, as recommended in the Hampton review, where functions are to be given to a new body. Completing such mergers successfully may involve conferring a range of functions on new bodies, which may include functions of legislating. Without this provision, it would be necessary to use two orders to complete a number of these mergers—one to create the new body and a subsequent one to confer legislative functions on it. That would be unnecessarily bureaucratic and a poor use of parliamentary time. It is right that Parliament has the opportunity to consider the merits of the proposals of that order at one and the same time.
	The noble Lord, Lord Kingsland, also said he thought there was an inconsistency between Clauses 1 and 2. They have different purposes: Clause 2 is about ensuring that existing regulatory functions are exercised so as to comply with the five principles that have been the thread behind the legislation. Clause 1 is about removing or reducing burdens where a regulatory function is outdated.

Lord Kingsland: I am most grateful to the noble Lord for giving way. I think we would be much less concerned about this issue if we were confident that Clause 1 would be used only in the regulatory context. One of the difficulties about accepting what the Minister has said about the amendments is that there is no limiting criterion for Clause 1 which would permit it to operate only within the regulatory context. If the Minister would be prepared to insert the word "regulatory" between "reduce" and "burdens" in the title of Clause 1, Power to remove or reduce burdens, much of what he said would be acceptable.

Lord Bassam of Brighton: I shall say no more than that I will give the point fair consideration. I am sure that it is constructively made.
	I said earlier that I thought that the noble Lord, Lord Maclennan, was being generous in his comments because he conceded that his Amendment No. 24, if it had not necessarily been superseded by government Amendment No. 65, seemed to address the same range of issues. He said that he would go away and reflect on it further. I am grateful for that because it probably means that I do not have to go through a rather long, and what the noble Lord might consider slightly turgid, explanation of why we reject Amendment No. 24. I hope that, having heard what I said earlier about Amendment No. 65, he will reflect on it further. I am sure that I will happily deal with further concerns that were at the root of his amendment outside the parameters of the Committee. I am grateful for the noble Lord saying that he was minded in any event to withdraw his amendment.
	I turn to Amendment No. 25, tabled by the noble Lord, Lord Norton of Louth. I certainly understand its rationale. It seems to stem from a set of priorities that is similar to those of the Government. The amendment provides that the power of legislating can be conferred only on bodies which are themselves set up in statute. I am grateful to noble Lords for their contribution to debates on this issue. I certainly understand the noble Lord's objective in proposing this amendment, which is to ensure that powers to legislate can be conferred only appropriately. As described, the Government have considerable sympathy with this objective, and we have introduced our own amendment to the Bill to ensure that legislative powers can be conferred only on appropriate persons and bodies.
	However, I have concerns that the amendment put forward by the noble Lord would not in practice further this important objective. Most immediately, it rules out the possibility of conferring powers to legislate on Ministers—the category of persons who, as the above examples suggest, are most likely to require such powers as part of a proposal for regulatory reform. It would rule out other bodies or organisations which, while they have important functions conferred under an enactment, were not set up by statute. I conclude that the noble Lord's amendment is in essence probably too restrictive.
	The second part of the amendment provides that legislative powers could be conferred on bodies only to legislate in areas for which they already have responsibility. While I understand the rationale for the proposal—in most cases, of course, a power to legislate would be given to a body only to make legislation in its area of responsibility—my concern is that it may create an overly restrictive arrangement in practice. In the case of orders implementing mergers, as recommended in the Hampton review, or reforming entire regulatory regimes, as with the Regulatory Reform (Fire Safety) Order 2005, sensible modifications to a body's legislative powers may be integral to the proposal in question. In this case, such a restriction would prevent the delivery of a worthwhile reform.
	It is worth reminding ourselves that it is Parliament, not Ministers, that remains the final arbiter of what is an appropriate use of the powers in the Bill. The critical point of which I should remind your Lordships is that Parliament and its committees would never approve a measure giving bodies or persons powers to legislate on matters completely unrelated to their duties or inappropriate for other reasons. Perhaps the noble Lord, Lord Norton, will further reflect on that.
	The noble Lord, Lord Jenkin, raised something of a red herring about abolishing bodies to the extent that we would be able to bring into play mergers which were highly controversial and ought to be constructed through primary legislation. The Government have given a very clear undertaking that they will not deliver highly controversial proposals by the regulatory reform order route. The precondition in Clause 4 prevents orders that do not maintain necessary protections and rights. So the noble Lord should be satisfied that that is effectively a protection that rules out controversial mergers by order. There may be mergers that are not in the least bit controversial—which are dead boring and nobody is at all interested in but which are sensible and make a lot of administrative and organisational sense and would reduce burdens on business, which is what we are all trying to archive. Ultimately, of course, there is a statutory right of veto enshrined in the legislation.

Lord Jenkin of Roding: I am partially reassured by what the Minister has said, but I wonder whether he could undertake to make a few inquiries and perhaps write to me and reassure me on this matter. That letter could be available to the people who are very concerned about this proposal, which, so far as I know, is still a live one in the Department of Health. It could assure them that there was no possibility of the issue being dealt with under this Bill and that it could be dealt with only through primary legislation. If he could write to me on that, I would very much appreciate it.

Lord Bassam of Brighton: I am happy to write to the noble Lord on the issue. Of course, I would share that correspondence with other noble Lords. The only difficulty that I foresee in that correspondence is that it is not always easy to define "controversial", although we all probably understand what it might be.

Lord Jenkin of Roding: I want two bodies to be named in the correspondence—the Human Tissue Authority and the Human Fertilisation and Embryology Authority—and to know that they will not be merged under this Bill.

Lord Bassam of Brighton: I shall certainly write to the noble Lord on that point. I have dealt in fair measure with the points that were raised. I hope that noble Lords will not feel it necessary to press the amendments in the same group.

On Question, amendment agreed to.
	[Amendments Nos. 21 to 25 not moved.]

The Earl of Onslow: moved Amendment No. 26:
	Page 2, line 26, at end insert—
	"( ) Provision may not be made under subsection (1) to amend or repeal primary legislation unless the Minister has presented to Parliament proof that the same objectives cannot be achieved by amending or revoking secondary legislation."

The Earl of Onslow: First, I thank the Chief Whip for agreeing to take this amendment slightly later than we would normally debate an amendment. I thank the Government for giving me some more time—and I shall attempt to be short. Note that I said "short", not brief, as everybody else says.
	What has been exercising me, as noble Lords know, throughout the whole of this legislation is the power that Government Ministers are taking to use and change primary legislation. On the past amendment or two, we have had speeches from my noble friends Lord Kingsland and Lord Norton of Louth and from the noble Lord, Lord Maclennan, who described how frightfully complicated the effort to deregulate is and the complexity of the legislation itself. So one is between the Scylla of excessive government power and the Charybdis of over-regulation—and it is extremely difficult to get through those two stones.
	I am trying to suggest to the Committee that the primary way of deregulation must be through deregulation and not "delegislation". Of course, I am not going to divide the Committee on this amendment, as I am sure that the wording is wrong, but I hope that the Government will give an undertaking that we shall always go down the deregulatory regulation route rather than attempt to amend primary legislation. It is in the power of Governments to amend primary legislation easily, but that is something that should be resisted by all of us most of the time. As parliamentarians, we should not allow Ministers to have this power unless it is absolutely vital. I beg to move.

Lord Henley: At this hour, I will be both short and brief. We certainly support my noble friend's amendment and we look forward to hearing what the Government have to say on it. I hope that, if my noble friend feels that the answer is not satisfactory, he will be more than happy to bring the amendment back at a later stage.

Lord Bassam of Brighton: As the hour is late, I shall edit my speaking notes, for which I am sure the noble Earl, Lord Onslow, will be grateful. I shall not criticise the drafting of the amendment; it is a credit to the noble Earl that he has tabled the amendment in the form in which he has.
	If my recollection is right, at Second Reading the noble Earl questioned fairly repeatedly why changes to primary legislation would be needed to get rid of regulation. There may be confusion over the word "regulation", since regulations are a type of secondary legislation. However, the order-making power in Clause 1 is a power to remove or reduce burdens or regulation by amending or repealing either primary or secondary legislation. The power to amend or revoke secondary legislation is less important, as departments will always have a power to do this in any event. All Governments have benefited from that, or enjoyed the disbenefits of it. The main benefit of this power is the ability to amend primary legislation. It is unlikely that a department would propose to use an order under this power unless it needed to amend or repeal provisions in primary legislation, and it may wish to amend or revoke secondary legislation at the same time.
	The noble Earl may be reading more into the language of this provision than he needs to. I understand his caution. I have heard him say on many occasions that he does not like giving Ministers too many powers. However, we have tried to balance as best we can the deregulatory drive that underpins the legislation—clearly, that objective is shared across the parties to a greater or lesser degree—with the need to ensure that there are adequate procedures and proper means to hold the Executive to account in bringing forward regulatory reform orders. I know that the noble Earl does not trust any Government to do that, but so far the evidence regarding the 2001 Act is that progress can be made in that regard. There have not been any judicial reviews of regulatory reform orders brought forward through that process. However, there have been constraints on it, which have defeated some of the better intentions of the Government and of officials as they highlight some of the less useful aspects of certain regulations.
	I hope that that response helps the noble Earl. It is certainly designed to do so. I understand why he has tabled the amendment, but I argue that it is not necessary because there are adequate protections.

The Earl of Onslow: I am immensely grateful to the noble Lord for that answer, because he referred to something about the Bill that I had not grasped. He said that the Bill will be used only to amend primary legislation because it will not be necessary in order to amend regulation. That admission and that admission alone has made my whole intervention worth it. Of course, I will not divide the Committee, as I said, and, of course, I will withdraw my amendment. However, what the Minister said on that point leaves me with an enormous amount of thinking to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 27 not moved.]

Lord McKenzie of Luton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Leicester City Council Bill

Liverpool City Council Bill

Maidstone Borough Council Bill

The Bills were reported from the Select Committee without amendment and recommitted to an Unopposed Bill Committee; then the Chairman of Committees directed, pursuant to Private Business Standing Order 121(1)(b), that the order recommitting the Bills to an Unopposed Bill Committee be discharged.

Commons Bill [HL]

The Bill was returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
	House adjourned at half past ten o'clock.